Law Society of Kenya v Attorney General & another [2021] eKLR 18. The second case is Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya others [2015] eKLR where on the claim by the Respondents that the Court should not interfere on the doctrine of separation of powers, the Court held as follows: 128. To our mind, the doctrine of separation of powers does not stop this court from examining the acts of the Legislature or the Executive. Under Article 165(3)(d) of the Constitution, the Judiciary is charged with the mandate of interpreting the Constitution; and has the further mandate to determine the constitutionality of acts done under the authority of the Constitution... We are duly guided by the principles enunciated in the above authorities, and it is clear that the doctrine of separation of powers does not prevent this court from exercising its jurisdiction under Article 165(3)(d). 129. We hasten to add that contrary to submissions of Counsel for Jubilee that in hearing and determining this petition we shall be limiting Parliament's legislative authority, it is apparent from the foregoing brief analysis and the doctrine of constitutional supremacy that it is not the Courts which limit Parliament but the Constitution itself. It also sets constitutional limits on the acts of the three arms of government while giving the Court the jurisdiction to interpret the constitutionality of any act said to be done under the authority of the Constitution. [Emphasis added] 19. On the question as to whether limitations arising out of the enforcement of Section 5 of the Order Act through the directives of the NSAC are reasonable and justifiable and the explanations given by the Respondents, the Petitioner relies on the Coalition for Reform and Democracy (CORD) & 2 others case (supra) for the position that: 209. In the case of S vs Zuma & Others (1995)2 SA the Court held that a party alleging violation of a constitutional right or freedom must demonstrate that the exercise of a fundamental right has been impaired, infringed or limited. Once a limitation has been demonstrated, then the party which would benefit from the limitation must demonstrate a justification for the limitation. As in this case, the State, in demonstrating that the limitation is justifiable, must demonstrate that the societal need for the limitation of the right outweighs the individual's right to enjoy the right or freedom in question. 20. The Petitioner also referred to Geoffrey Andare v Attorney General & 2 others [20161 eKLR where the constitutionality of Section 29 of the Kenya Information and Communication Act Cap 411A was successfully challenged. In that case the Court expressed itself in the following words: 90. I have set out above the nature of the right to freedom of expression, and its importance in a free and democratic society. The respondents have asserted that the limitations in section 29 are justified in a free and democratic society. The questions that beg, bearing in mind the express provisions of Article 24 and the criteria in R vs Oakes are: what is the purpose of the limitation, and how important is it" What is the relationship between the limitation and its purpose" Are there less restrictive means to achieve the purpose intended" ... 95. Be that as it may, section 29 imposes penal consequences in terms which I have found to be vague and broad, and in my view, unconstitutional for that reason. Even if they were not, could the provision be permissible under Article 24" 96. The respondents were under a duty to demonstrate that the provisions of section 29 were permissible in a free and democratic society. They were also under a duty to demonstrate the relationship between the limitation and its purpose, and to show that there were no less restrictive means to achieve the purpose intended. They have not done this. 21. In its further submissions, the Petitioner argues that the Order Act was enacted on 13th June, 1950. As such, Section 5 of the Order Act and the directives must give way to the supremacy of the Constitution as they are inconsistent, void and invalid under Article 2(4) of the Constitution. 22. The Petitioner further cited the Report dated 17th September, 2008 on the General Elections held in Kenya on 27th December, 2007 where it was noted that Section 5 of the Order Act was prone to abuse to suppress divergent political opinions. An extract of the Report states that: The amendment to the Public Order Act removed the need for licenses and permits with respect to the holding of public meetings The Act also provides that no person shall be restricted from holding public meetings on account of political beliefs or opinions. http://www.kenyalaw.org - Page 6/34