Law Society of Kenya v Attorney General & another [2021] eKLR Order Act prescribes the offense of an unlawful assembly which is punishable under Chapter IX of the Penal Code Cap 63 of the Laws of Kenya. The other penal measures sought to be imposed under the directives are therefore, unlawful as such power can only be exercised by Parliament. Second, Section 15 of the National Cohesion and Integration Act No 12 of 2008 establishes the National Cohesion and Integration Commission which is mandated with the roles of investigations for purposes of prosecution of offences enumerated in the said Act, including hate speech. The NSAC cannot arrogate to itself the powers of the National Cohesion and Integration Commission as it has, as doing so contravenes Article 10 Constitution on the rule of law, good governance, integrity, transparency and accountability. 12. The third reason is that the National Police Service is established under Article 244 of the Constitution with the mandate, inter alia, to prevent corruption and promote transparency and accountability. The National Police Service is under the command of the Inspector-General of Police who is appointed by the President of the Republic of Kenya with the approval of Parliament. Article 244 (b) and (c) of the Constitution designates the functions of the National Police Service as including compliance with constitutional standards of human rights and fundamental freedoms as well as fostering and promoting relationships with the broader society. It is argued that the Inspector-General of Police exercises independent command under Article 245 (2) (b) of the Constitution and may act on lawful directions from the Cabinet Secretary responsible for police services on any matter of policy. The Inspector-General of Police does not however, take any directions from any person in the Executive on: investigation of any particular offense or offenses; and enforcement of the law against any particular person or persons in view of Article 245 (4) (a) and (b) of the Constitution. 13. The Petitioner further argues that the only office empowered to direct the 2nd Respondent under Article 157(4)(b) of the Constitution is the Director of Public Prosecutions. It follows therefore, that the NSAC and the Cabinet cannot direct the 2nd Respondent in the enforcement of the Public Health (Covid-19 Restrictions of Movement of Persons and Related Measures) Rules, 2020, the Public Order Act and the National Cohesion and Integration Act No 12 of 2008. 14. The Petitioner made quite elaborate submissions on the constitutionality of Section 5 of the Order Act. It contends that the provision limits the rights and freedoms of and/or to an opinion, expression, freedom of the media, association, assemble, demonstrate and campaign for a political cause in two ways. One, it preconditions the exercise of those rights and freedoms to the issuance of notice of exercise of the rights and freedoms to a police officer. The police officer is empowered to refuse permission for the exercise of any of such right or freedom simply on the ground that "it is not possible to hold a meeting or procession". In doing so, the police officer need not ascribe any or good reasonsfor the refusal or affording one fair administrative action on the matter as required by Article 47 of the Constitution. The second reason is that the impugned provision abrogates and limits the rights and freedoms of and/or to an opinion, expression, freedom of the media, association, assemble, demonstrate and campaign for a political cause by empowering a police officer to disperse a peaceful meeting or procession in the exercise of those rights and freedoms. 15. The Petitioner argues that the National Police Service Act No 11A of 2011 enacted subsequent to the promulgation of the Constitution contains general functions set out in PART VIl. Those functions are sufficient to enable the National Police Service maintain law and order in the people's exercise of the rights and freedoms of and/or to an opinion, expression, freedom of the media, association, assemble, demonstrate and campaign for a political cause without resort to the evidently unconstitutional and retrogressive colonial relics in the provisions of Section 5 of the Order Act. 16. Article 24 (1) of the Constitution, it is submitted, guarantees that a right or fundamental freedom in the Bill of Rights shall not be limited except by law. Any such limitation must be reasonable and justifiable in an open and democratic society and based on human dignity, equality and freedom. All limitations in Section 5 of the Order Act in the people's exercise of the rights and freedoms of and/or to an opinion, expression, freedom of the media, association, assemble, demonstrate and campaign for a political cause are unconstitutional if the Constitution is interpreted holistically as it should. 17. In support of the above arguments, the Petitioner referred to two decisions. The first one is the Ugandan case in Tinyefuza v Attorney General of Uganda, Constitutional Petition No 1 of 1997 (1997 UGCC 3) where the Court stated that: The second principle is that the entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution. The third principle is that the words of the written Constitution prevail over all unwritten conventions, precedents and practices. I think it is now widely accepted that a Court should not be swayed by considerations of policy and propriety while interpreting provisions of a Constitution. http://www.kenyalaw.org - Page 5/34