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Law Society of Kenya v Attorney General & another [2021] eKLR “person” includes a company, association or other body of persons whether incorporated or unincorporated; “State organ” means a commission, office, agency or other body established under this Constitution; 73. The Constitution does not provide for the NSAC. Therefore, NSAC is not a state organ. Further, none of the parties alluded that NSAC is created under any law. In essence, therefore, NSAC, is not a creation of any statute. However, going by the description of who a ‘person’ is under Article 260 of the Constitution, NSAC qualifies to be described as a ‘person’ for the reason that it is a ‘body of persons whether incorporated or unincorporated’. 74. As stated above, this body of persons known as NSAC is within the administrative structure of the National Executive. 75. The impugned directives by NSAC were contained in a ‘Government Statement’. The Statement dealt with what it termed as ‘the unchecked utterances and political weaponization of public gatherings continue to undermine law and order within the country’. The statement partly stated as follows: Being fully seized of the foregoing, and conscious of the freedoms and liberties enshrined in our Constitution and other laws of the Republic of Keya, now therefore, NSAC, at its sitting today, resolved to remind Kenyans of the existing legal obligations and sanctions and issued the following directives. 76. The directives issued by NSAC were as under: 1. That All Public Meetings and Public Processions Shall Be Held in Strict Compliance with Section 5 of the Public Order Act, Cap. 56 Laws of Kenya. The convenor or any person intending to hold a Public Meeting or a Public Procession shall: a) Notify the Officer Commanding Station (OCS) of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession. b) Be present throughout the meeting or procession and shall assist the police in the maintenance of peace and order at the meeting or procession. c) Obey all Orders given to him or her by the OCS or any police officer of or above the rank of inspector. d) At all times bind themselves to be peaceful and non-violent and shall keep to the designated places of public meetings or public processions. 2. That Any Person Who So Elects to Attend or Participate in a Public Meeting and or Procession Shall, Pursuant to the Law and in Particular, Section 5 of the Public Order Act: a) Exercise a high sense of civic duty and responsibility and not to be in possession of any weapon. b) At all times bind themselves to be peaceful and non-violent and shall keep to the designated places of public meetings or public processions. c) Report to the relevant authority incidents of hate speech, incitement to violence, ethnic contempt or any other offence; d) Respect the freedom of expression of other people; e) Not abuse, exclude, demean, stereotype or profile other people; f) Not propagate insurgency and socio-economic hostility among and between Kenyans; g) Maintain strict observance of the law for the safety and well-being of everyone present. http://www.kenyalaw.org - Page 21/34

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Law Society of Kenya v Attorney General & another [2021]

Case Law

Country

Kenya

Country Location

Latitude: 2.2319662848575907

Longitude: 37.627257845273796

Country Location (linked Case Law): Kenya

Decision Date: Aug 18, 2021

Case Status: Closed

Case Outcome (Procedural)

Motion Granted/Motion Denied

Case Outcome (Disposition)

Injunction, Order, or Motion Granted

Keywords

Public Order

Court Name: IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

Case Number: Constitutional Petition E327 of 2020

Case Summary: Facts The Law Society of Kenya (LSK) challenged the constitutionality of Section 5 of the Public Order Act and the legality of directives issued by the National Security Advisory Committee (NSAC) on 7th October 2020, which were later ratified by the Cabinet on 8th October 2020. These directives aimed to regulate public gatherings and processions to curb the spread of COVID-19. The LSK argued that these measures infringed on fundamental rights, including freedom of expression, assembly, and association.

Issue Whether the directives issued by the NSAC and ratified by the Cabinet were unconstitutional. Whether Section 5 of the Public Order Act was unconstitutional. Rule The constitutionality of laws and directives was evaluated under Articles 10, 19, 20, 21, 24, 27, 29, 32, 33, 34, 36, and 37 of the Constitution of Kenya, which protect fundamental rights and freedoms. The limitations under Article 24 of the Constitution were central to determining whether the directives and laws were justifiable in an open and democratic society.

Analysis The Court analyzed the directives and the role of NSAC in the context of the Kenyan Constitution.

Legality of NSAC and its Directives:

The Court scrutinized the legal standing of NSAC, which was not established under the Constitution or any statute. NSAC was identified as an administrative body within the Executive, lacking the authority to issue binding directives, especially those affecting the fundamental rights of citizens. The Court found that the directives issued by NSAC, later ratified by the Cabinet, were unconstitutional because they overstepped the constitutional limits by directing the National Police Service on how to perform its duties. This contravened Article 10(2)(a) and Article 245(2)(b) and (4) of the Constitution(Constitutional_Petition…)(Constitutional_Petition…). Constitutionality of Section 5 of the Public Order Act:

The petitioners argued that Section 5 of the Public Order Act was a colonial relic that unjustifiably restricted the freedoms of assembly, expression, and association. The Court noted that this section had been upheld as constitutional by the Court of Appeal in a previous case. However, Justice Mrima expressed a dissenting view, highlighting that the law was outdated and prone to abuse, as evidenced by its history of suppressing dissenting political views. Nevertheless, the Court was bound by the principle of stare decisis and upheld the constitutionality of Section 5 as determined by the Court of Appeal(Constitutional_Petition…)(Constitutional_Petition…). Conclusion The Court ruled that the directives issued by NSAC and ratified by the Cabinet were unconstitutional and void. However, the petition challenging the constitutionality of Section 5 of the Public Order Act was dismissed, as the Court adhered to the binding precedent from the Court of Appeal.

Case Significance: This case underscores the importance of adhering to constitutional mandates in the exercise of executive power, particularly in matters affecting fundamental rights and freedoms. The ruling highlights the judiciary's role in curbing executive overreach and emphasizes the need for statutory laws to be updated in line with constitutional provisions to prevent abuse of power.

Related Law

Public Order Act [1950]

Source URL: eKLR

Notes: he directives issued by NSAC on 7th October 2020 and ratified by the Cabinet on 8th October 2020 were declared unconstitutional, ineffective, and void ab initio. The Court upheld the constitutionality of Section 5 of the Public Order Act.

Collection

CIPIT

Primary Documents

Constitutional_Petition_E327_of_2020.pdf
English
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Supporting files

pdf

Directive.pdf126.9 kB

CYRILLA: Global Digital Rights Law

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Law Society of Kenya v Attorney General & another [2021]

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