Law Society of Kenya v Attorney General & another [2021] eKLR jurisprudence has now established that when individual liberties come into conflict with national security, it is the latter which must give way and not the other way round... Second, the argument that the interests of public order, peace and security necessitate the pre-charge detention of the Applicant because his speech has led to "demonstrations against him" does not meet the high threshold of "compelling test" required by our Constitution. The reason given appears illogical when set against the granted remedy: hold the Applicant without charging him for seven days then release him. There is no indication how holding the Applicant for precisely seven days will dissipate the public order, peace and security risk his alleged utterance caused. I have noted that there is no allegation that the Applicant has threatened to make like utterances if they are, indeed, capable of inciting the public. In any event, the Applicant has demonstrated a willingness to abide by the condition not to make any comments akin to the ones the State finds insalubrious and capable of inciting the public. What, then, is the logic of his continued detention" In short, the radical remedy prayed for and granted to the State (to hold the Applicant without charge for 7 more days) is not rationally related to the alleged risk. [Emphasis added] 29. Transcending beyond the Kenyan borders, the Petitioner referred to Malawi Law Society and Others v President and Others (2002) AHRLR 110 (MwHC 2002) where the Court had occasion to adjudicate over measures taken by the State to maintain law and order, the implementation of which amounted to a violation of rights and fundamental freedoms of the people of Malawi. The Court had the following to say on the issue requiring permission to be sought from the police for the exercise of rights and freedoms: [22.1This section cannot and does not limit the rights in issue; it only regulates how such rights, among other things, can be enjoyed. The position of the law therefore is as was espoused in the case of Mulundika and Others v The People, (1996) IBHRC 199 (Supreme Court of Zambia). The citizen therefore need only give the police notice of the assembly, et cetera. There is no legal requirement that the police should grant them permission. Further there is no legal requirement to give notice about who will be addressing or what will be said at the assembly, meeting or procession. According to section 25 of the Police Act, assemblies, meeting or processions at private places do not require police notice. [23.1 Lastly, this Court bears in mind that the Constitution, under section 45, permits derogation from the rights only in accordance with the Constitution, when there has been a declaration of a state of emergency. It cannot be said and it was not argued that we have reached that stage. [24.1 After considering the arguments and submissions before me, I find that there is no law prescribed to limit or restrict the right to assembly and demonstration. I find that the directive of the President at a political rally to limit such rights does not amount to law. The argument by and for the respondents in view of the finding in the case of R v Oakes (supra) are therefore not tenable. In view of this, I find that there is no need to examine the rest of the tests set out in section 44(2) of the Constitution. [Emphasis added] 30. The Petitioner still on the above decision, referred to the Court’s finding on the obligation to ensure that police power is not abused in a democratic state to skew belief, opinion or political causes. The Court further held that: [30.1 After hearing the parties and considering the evidence and the submission made by counsel and reading the authorities that counsel ably researched, it is my judgment that the two directives made by the President were unconstitutional, and furthermore that the banning all form of demonstrations' was unreasonable as such a ban is too wide and not capable of enforcement as events have shown even at the President's own rallies. It should be noted that the police have powers to regulate assemblies, meeting and processions under section 25 of the Police Act; the state has numerous other laws that regulate assemblies and prevent rioting, and also laws on defamation that regulate freedom of speech and expression. The police service would be advised to use these powers properly. Again, as Malawians, the organizers of demonstrations on this issue, or indeed any other issue, for or against, must bear in mind public tranquility. Democracy will always have enemies both within and without the government. Granted that the police have, at times, acted in a biased manner, as numerous cases before this Court will show, but we must take heed that confrontation will only result in chaos and disorder which are, in themselves, enemies of democracy. The rule of law must be preserved by challenging those we think have wronged us before the court. The wrongdoers too must be heard. I wish us to direct our minds to the words of Tambala J, as he was then, in the case of the National Consultative Council v The Attorney General Civil Cause 958 of 1994. He held that: There is need to strike a balance between the needs of society as a whole and those of individuals. If the needs of society in terms of peace, law and order, and national security are stressed at the expense of the rights and freedoms of the individual, then the Bill of Rights contained in our Constitution will be meaningless and the people of this country will have struggled for freedom and democracy in vain. In a democratic society, the Police must sharpen their skills and competence. They must be able to perform their http://www.kenyalaw.org - Page 8/34