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Law Society of Kenya v Attorney General & another [2021] eKLR 3. That All Persons Who Elect to Address Any Public Meeting and Procession Shall Be Bound By the Legal Penalties and Obligations Set Out In Sections 13 and 62 of the National Cohesion and Integration Act, Which Provisions Bar Speeches, Utterances and Messages that Contain: a) Offensive, abusive, insulting, misleading, confusing, obscene or profane language. b) Inciting, threatening or discriminatory language that may or is intended to expose an individual or group of individuals to violence, hatred, hostility, discrimination or ridicule on the basis of ethnicity, tribe, race, color, religion, gender, disability or otherwise. c) Attacks on personal rights that trigger discrimination on the basis of their ethnic background, economic status, race, religion or associations. 4. That All Media Outlets Shall Be Held Responsible for All the Content that they Publish and or Broadcast Pursuant to Section 62 of the National Cohesion and Integration Act as read together with the Guidelines for Monitoring Hate Speech in the Electronic Media issued by the National Cohesion and Integration Commission. Accordingly, the media shall: a) Not publish words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race. b) Desist from providing platform to hate mongers, inciters and tribalists. c) Practice responsible and conflict sensitive reporting. d) Endeavor to air programs that promote respect, national unity and cohesion. 5. That All Social Media Users Shall be Held Individually Liable for All Content on their Social Media Profile Pursuant to the National Cohesion and Integration Act as read together with the Guidelines on Prevention of Dissemination of Undesirable, Bulk and Premium Rate Political Messages and Political Social Media Content via Electronic Communication Network. In That Regard, Every Social Media User Shall Ensure that: a) All their content is written in a language that avoids a tone and words that constitute hate speech, ethnic contempt, and incitement to violence, harassment, abuse, defamation or intimidation. b) Before forwarding and or sharing any messages, authenticate and validate the source and truthfulness of their content so as to limit information that might spread rumors, mislead or is not supported by facts. c) Administrators of social media platforms are duty bound to moderate and control undesirable content and discussions that have been brought to their attention on their platforms. 77. In the end, the statement stated thus: In this regard, NSAC hereby directs the relevant security organs to enforce these directives without fear or favour to the offenders, regardless of their economic standing, ethnicity, religion and political association and status. 78. It is without any doubt, that the security organ which was directed to enforce the directives by NSAC is the National Police Service. I say so because the actions complained of and which NSAC wanted checked related to maintaince of law and order within the Kenyan borders. As such, Sections 24, 27 and 35 of the National Police Service Act, No. 11A of 2011 (hereinafter referred to as ‘the Police Act’) come to play. 79. The said provisions state as follows: - http://www.kenyalaw.org - Page 22/34

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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]

Primary Documents

Supporting files

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