Law Society of Kenya v Attorney General & another [2021] eKLR procession is conducted peacefully and that those involved in it are able to exercise their constitutional rights while at the same time not infringing on the rights of other persons, who have an equal right to access public spaces but are otherwise not involved or interested in the meeting or demonstration. The Act and the Code do not allow stoppage of meetings and processions unless there is clear, present or imminent danger of breach of peace or public order. The meeting or procession can be stopped only when it ceases being peaceful as required by the Constitution. Turning to the criteria under Article 24 of the Constitution, there can be no dispute that the limitation is supplied by legislation, the Public Order Act and the Penal Code, which are laws within the meaning of that Article. By its nature freedom to assemble, demonstrate, picket and petition, is critical to a free society because it makes it possible for citizens to gather and express their views, stir public debate, search for truth, and participate in public affairs. Hence the basis of its limitation must be carefully scrutinized. Having regard to the following considerations namely; that by constitutional edict freedom of assembly, demonstration, picketing and petition must be enjoyed peacefully; the public order interest that informs the limitation of the right, namely the need to avoid disorder, violence to citizens, damage to property; the fact that under the Public Order Act and the Penal Code the right is limited only when there is clear, present or imminent danger of breach of peace; the need to ensure that the enjoyment of the appellants’ right does not prejudice the rights and fundamental freedoms of other users of public spaces and thoroughfares who are not involved in the meeting or procession; we hold that the impugned provisions of the Public Order Act and Penal Code are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. We need only point out that many democratic polities have similar public order legislation, such as the Public Order Act, 1986 of the United Kingdom and the Regulation of Gatherings Act, 1993 of South Africa. Having concluded that the stoppage of the appellants’ meeting or procession was not a violation of their rights under Article 37 and that the provisions of the Public Order Act and the Penal Code under which the procession was stop are not unconstitutional, we must also conclude that the appellant’s freedom of association and expression, which in this instance depended heavily on and were intertwined with their right to assembly, demonstrate, picket and petition were also not violated. 47. Submitting on the directives issued by the NSAC and the position that the Constitution makes it abundantly clear that the national executive is constitutionally mandated to give policy directions to the National Police Service contrary to the assertions by the Petitioner, the Respondents contend that the Constitution provides in no uncertain terms that the National Security Organs shall be subordinate to civilian authority under Article 239(5) of the Constitution. In Article 240, the Constitution establishes the National Security Council composed of the President, Deputy President, Cabinet Secretary for Defence, Cabinet secretary for foreign affairs Cabinet secretary for internal security, the Attorney-General, the Chief of Kenya Defence Forces, the Director-General of the National Intelligence Service, the Inspector General of the National Police. Under Article 240(3), the Council exercises supervisory control over national security organs and perform any other functions prescribed by national legislation. 48. The Respondents further argue that Article 130(1) of the Constitution provides that the national executive of the Republic comprises the President, the Deputy President and the rest of the Cabinet and that Article 131(1) (b) of the Constitution provides that the President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries and further that Article 245(4) of the Constitution provides that the Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service. 49. The Respondents further submitted that executive authority vests upon the President as Head of the Executive and also Head of State. The President is assisted in undertaking his constitutional mandate by Cabinet which includes Cabinet Secretaries and the Attorney-General. The Cabinet Secretary for Interior who is currently in-charge of police matters in the Cabinet does so on behalf of the President and Cabinet and whatever policy directions he gives to the Police are informed by decisions of the President and also by Cabinet resolutions and that it would be a pedantic interpretation of law to treat the Cabinet Secretary of Interior as an isolated office, detached from the rest of Cabinet and isolated from the Presidency as alluded to by the Petitioner. 50. The Respondents further submit that the status of the NSAC is immaterial in the proceedings since the directives were ratified by Cabinet and became the directives of Cabinet. The Respondents rely on the legal principles of ratification in making the said submissions. They refer to the Court of Appeal in Nairobi Civil Appeal No. 20 of 2016 Middle East Bank Kenya Limited v Thalia Katia Maria Castanha [2016] eKLR where it was held that: ..In any event an act though done by an unauthorized agent which act is later adopted by the principal as true is binding upon the principal by virtue of his adoption (ratification). Ratification can apply retrospectively provided the act done though unauthorized, was lawful. (see East African Safari Air Limited v Anthony Ambaka Kegode & another [2011] eKLR). http://www.kenyalaw.org - Page 14/34