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Law Society of Kenya v Attorney General & another [2021] eKLR 135. In the end, I must state that I would have found Section 5 of the Order Act to be unconstitutional, hence, void and of no legal effect. However, as I stated when I was initiating this discussion and in keeping with the doctrine of stare decisis, the decision by my Lordships in Nairobi Civil Appeal No. 261 of 2018 Haki Na Sheria Initiative v. Inspector General of Police & 3 others case (supra) must prevail. 136. This Court now returns the verdict that Section 5 of the Order Act is constitutional. Conclusion and Disposition: 137. The Petition has, therefore, partly succeeded. Whereas the Petitioner has succeeded in proving that the directives issued by NSAC on 7th October, 2020 and ratified by the Cabinet on 8th October, 2020 are unconstitutional, it has failed to prove that Section 5 of the Order Act is unconstitutional. 138. In the end, the following final orders hereby issue: (a) A declaration be and is hereby issued that all the directives made by the National Security Advisory Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020 for the use of section 5 of the Public Order Act Cap 56 of the Laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings are unlawful, unconstitutional and in violation of Articles 10(2)(a) and 245(2)(b) and (4) of the Constitution for directing the law enforcement officers on how to discharge their duties. (b) An order of Certiorari be and is hereby issued calling into this Court and quashing the entire directives made by the National Security Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020, for the use of section 5 of the Public Order Act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings. (c) An order of prohibition be and is hereby issued restraining the Inspector General of Police whether by himself or any police officer under its command from taking directives from the National Security Advisory Committee and/or any other person, organ, body or entity in the manner in which the Inspector General of Police or its officers should carry out their constitutional and statutory duties save for the provisions of Articles 157(4) and 245(4) of the Constitution. (d) There shall be no order as to costs as the matter is a public interest litigation. Orders accordingly. DELIVERED, DATED and SIGNED at NAIROBI this 18th day of August, 2021. A. C. MRIMA JUDGE Judgment virtually delivered in the presence of: Mr. Kurgat and Mr. Havi, Learned Counsel for the Petitioner. Mr. Bitta, Learned Counsel instructed by the Honourable Attorney General for the Respondents. Elizabeth Wambui – Court Assistant. While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 4.0 International, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. http://www.kenyalaw.org - Page 33/34

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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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