Law Society of Kenya v Attorney General & another [2021] eKLR 2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles— a) National security is subject to the authority of this Constitution and Parliament; b) National security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms; c) In performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; … 67. In totality, we are satisfied that in circumstances where public order or safety has been or is at risk of being violated due to factors which include terror attacks or criminal insecurity, the limitation of the affected persons’ rights and freedoms within the context of Sections 8 & 9 of the Act is justifiable, reasonable and necessary under Article 24 of the Constitution to ensure the delicate balance of the rights of citizens. 68. Accordingly, we find that the appeal lacks merit and is hereby dismissed. We uphold the High Court’s finding that Sections 8 & 9 of the Act are constitutional. Taking into account that the appeal herein involves a public interest matter, the order that commends itself to us, is that each party shall bear their own costs. Orders accordingly. 46. The Respondents cited another case by the Court of Appeal where the section 5 of the Order Act was discussed. It is Nairobi Civil Appeal No. 1 of 2015 Hussein Khalid & 16 others v Attorney General & 2 others [2017] eKLR where the Court held as follows: That then is the summary of the background and the respective positions of the parties. To begin with, it is necessary to point out the close correlation between freedom of expression, freedom of association, and freedom of assembly, demonstration, picketing and petition. More often than not, freedom of association and freedom of assembly, demonstration, picketing and petition are illusory if they are straightjacket and treated in isolation and without regard to each other and to freedom of expression. The freedom of assembly, demonstration, picketing and petition guaranteed by Article 37 cannot have full meaning without freedom of association guaranteed by Article 36 and freedom of expression guaranteed by Article 33. While it is true that freedom to demonstrate, picket and petition may be exercised by a lone individual without vocal expression as in the case of a lone demonstrator with a placard, it is normally actualized and meaningful when exercised in association with others and through expression which may be by pure speech or symbolic speech such as placards, handbills, leaflets, T-shirts, and possibly, without deciding, even messages on the bodies of pigs. Thus freedom of assembly, demonstration, picketing and petition will be emasculated if it is not underpinned by freedom of association and freedom of expression. It must be emphasized that the freedom of expression, of association and of assembly, demonstration, picketing and petition are not among the fundamental rights and freedoms that cannot be limited under Article 25. Specifically, freedom of assembly, demonstration, picketing and petition that is guaranteed by Article 37 has an important internal qualifier, namely, to enjoy it, a person must be peaceful and unarmed. It is plainly obvious to us that in terms of Article 37, persons who are not peaceful or who are armed cannot claim to be entitled to freedom of assembly, demonstration, picketing and petition. The Public Order Act, Cap 56 was enacted to provide for, among others, public order. It has provisions for regulation of public gatherings, meetings and processions. “Public gathering” is defined in section 2 to mean a public meeting, a public procession and any other meeting, gathering or concourse of ten or more persons in any public place. On the other hand, the Act defines “public place” to mean any place to which the public or any section thereof are entitled or permitted to have access whether on payment or otherwise. Consistent with the Constitution, section 6(1) of the Public Order Act makes it an offence for a person to attend a public meeting or procession while armed with an offensive weapon. A person desiring to hold a public meeting or procession is required to notify the regulating officer at least 3 days before the meeting of the venue, date and time of the meeting. In the case of a procession the person has also to notify route to be used. Section 5(7) of the Act specifically requires the organizer of the meeting or procession or his agent to be present throughout and to assist the police in the maintenance of peace and order. Section 5(8) sets out the circumstances under which a public meeting or procession may be stopped, thus limiting the freedom of assembly, demonstration, picketing and petition guaranteed by Article 37. The provision empowers the regulating officer or a police http://www.kenyalaw.org - Page 12/34