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Law Society of Kenya v Attorney General & another [2021] eKLR 24. The Functions of the Kenya Police Service The functions of the Kenya Police Service shall be the— (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time. 27. The Functions of the Administration Police Service The functions of the Administration Police Service shall be the— (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) provision of border patrol and border security; (f) provision of specialized stock theft prevention services; (g) protection of Government property, vital installations and strategic points as may be directed by the Inspector-General; (h) rendering of support to Government agencies in the enforcement of administrative functions and the exercise of lawful duties; (i) co-ordinating with complementing Government agencies in conflict management and peace building; (j) apprehension of offenders; (k) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from http://www.kenyalaw.org - Page 23/34

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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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