Regarding the provisions of sections 31(1), (2) & (3) of POTA, Mr
Nyakiha submitted that, they are only applicable by the Police with prior
written consent of the Attorney General to search for and obtain evidence of
commission of an offence under POTA and the Court can only grant the
Police ex-parte application for an interception of communication or
admissibility of intercepted communications if it is satisfied that the written
consent of the Attorney General has been obtained as required by the law
and that there are reasonable grounds to believe that material information
relating to the commission of an offence under POTA or the whereabouts of
the person suspected by the Police Officer to have committed the offence is
contained in that communication or communications of that description.
In view of the foregoing, he submitted that sections 31(1 )-(4) cannot
thus be read in isolation of section 34(4) of POTA on the ground that both
the provisions provide statutory procedures to be met by the Police, the
Attorney General and the Court before specified offender's communication
is intercepted and retained by the Police through the communication service
provider and or exclusion of any person other than the parties and their legal
representatives from the instituted proceedings under POTA. Through such
legal processes, Mr. Nyakiha stressed that section 34(4) of POTA is in
conformity with the right to fair trial under article 13(1) and (6) when is read
together with article 30(2) (a) of the Constitution quoted above.
Regarding sections 35, 42(1) & (2) and 54 of POTA, the respondents'
counsel argued that, they do not offend one's Constitutional rights in relation
to fair trial, presumption of innocence, property and forming associations or
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