Law Society of Kenya v Attorney General & another [2021] eKLR main function of preserving peace, law and order without violating the rights and freedoms of the individuals. That is the only way they can contribute to the development of a free state. Matters of national security should not be used as an excuse for frustrating the will of the people expressed in their Constitution. [Emphasis added] 31. The Petitioner referred to another case from Malawi. It is The State (on the application of Lin Xiaoxiao & Others) v Attorney General, Judicial Review Cause No 19 of 2020 where the Court held that: 12.15 By way of concluding (for good now), the Court will be the first in joining the State in the fight against the corona virus epidemic. The Court will help in ensuring that all necessary measures put in place, be it by the legislature or the executive branches, are enforced. However, it has to be made clear that the Court will not be part of a fight against the epidemic that is being waged outside the dictates of the law. Equally true, the Court will not endorse measures that are unconstitutional and ultra vires. This country is founded on the rule of law: see sections 9, 12, 45(6) and 103 of the Constitution. 32. Taking cue from the foregoing Malawian political scene, the Petitioner submitted that the decisions exemplifies how police power is susceptible to abuse for political or other reasons and the definitive manner in which the Court ought to come out to prevent its abuse. It is further submitted that the National Police Service should not emulate the example of the Malawian Police then. On the other hand, the Court ought to take guidance from the Malawian Court on this matter which is in all fours, similar to the one before the Malawian Court. 33. On the need for tolerance for criticism by those in power, the Petitioner cited a Ugandan case in Andrew Mujuni Mwenda v Attorney General, No 12 of 2005 and No 3 of 2006 where the Court held as follows: That explains counsel Kakuru's observation that during elections voters make very annoying and character assassinating remarks and yet in most cases false, and yet no prosecutions are preferred against them. The reason is because they have a right to criticize their leaders rightly or wrongly. That is why he suggested, rightly so that leaders should grow hard skins to bear. We find that, the way impugned sections were worded have an endless catchment area, to the extent that it infringes one's right enshrined in Article 29(1) (a). We answer issue one in affirmative and in favour of the petitioners. 34. With the above submissions, the Petitioner urged the Court to allow the Petition as prayed. The Responses: 35. Both Respondents opposed the Petition. 36. The 1st Respondent relied on a Replying Affidavit sworn by Kennedy W. Kihara, the Principal Administrative Secretary to the Cabinet in the Office of the President, and a member of the NSAC. The Affidavit was sworn on 16th October, 2020. The Affidavit was filed in opposition to the Petitioner's Notice of Motion dated 12th October, 2020 but is taken also as a response to the main Petition. 37. The 1st Respondent deponed in justification of the directives by the NSAC that it was noted by the Cabinet that as the National government eased the containment measures put in place to stem the spread of the novel coronavirus disease, the country had experienced growing political tension that have exacerbated partisan divides, threatening peace, security and harmony within the country, and more importantly, exacerbated the risk of further spread and negative impact of the coronavirus pandemic, and that it was necessary to deal with the case urgently. 38. The 1st Respondent further deponed that the directives were issued to ensure "safety, peace, and order the attainment of national security". It was also deponed that the Petition is essentially seeking to usurp policy preferences of the National Executive contrary to the principle of separation of powers and for the Court to make value judgements on executive policy preferences. 39. On the use of Section 5 of the Order Act, the 1st Respondent deponed that the limitations therein are reasonable and justifiable. 40. The 2nd Respondent relied on a Replying Affidavit sworn by Dominic Kisavi, a Senior Superintendent of Police, a Staff Officer of Operations, Kenya Police Service. The Affidavit was sworn on 16th October, 2020 in opposition to the Petition and the Notice of Motion dated 12th October, 2020. http://www.kenyalaw.org - Page 9/34