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Law Society of Kenya v Attorney General & another [2021] eKLR the Public Order act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings h. A conservatory Order be and is hereby issued suspending the directives made by the National Security Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020, for the use of section 5 of the Public Order act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings, pending the hearing an determination of this Petition. i. A conservatory Order be and is hereby issued restraining the 2nd Respondent acting by himself any police officer under his command from seeking licence or authorise the holding of public gatherings, meetings and processions, banning, disrupting or in any manner whatsoever interfering with peaceful gatherings, meetings and processions on the strength of the directives made by the National Security Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020, for the use of section 5 of the Public Order act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings. j. A conservatory Order be and is hereby issued restraining the 2nd Respondent acting by himself any police officer under his command from seeking licence or authorise the holding of public gatherings, meetings and processions, banning, disrupting or in any manner whatsoever interfering with peaceful gatherings, meetings and processions of The Law Society of Kenya its branches and Chambers as well as Members, on the strength of the directives made by National Security Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020, for the use of section 5 of the Public Order act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings. k. Any other relief the Honourable Court deems appropriate, just and fit to grant. l. The Costs of this Petition be provided for. 7. The Petitioner has delineated two issues in its written submissions. They are the existence and powers of the NSAC and the constitutionality of Section 5 of the Order Act. 8. On the existence and powers of the NSAC, the Petitioner submits that the Respondents did not demonstrate in their Affidavits where the NSAC derives power of existence and to 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. It is submitted that Article 240 of the Constitution establishes the National Security Council with supervisory control over national security organs and performance of any other functions prescribed by national legislation. That, the National Security Council reports to Parliament annually on the state of the security of Kenya. 9. The Petitioner avers that a perusal Constitution and Statutes does not disclose the establishment and existence of an entity called NSAC. It is non-existent. A non-existent body cannot exercise any administrative power in the manner sought through the directives made by the NSAC on 7th October, 2020 and ratified by the Cabinet on 8th October, 2020 for the use of Section 5 of the Order Act to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings. 10. The position in law on the issue, the Petitioner submitted, is stated in Administrative Law, Sir William Wade, 10th Edn as follows: The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong...must be able to justify its action as authorised by law-and in nearly every case this will mean authorised directly or indirectly by Act of Parliament. Every act of governmental power" i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. [Emphasis added] 11. The Petitioner posits that even if the existence of the NSAC were to be justified for whatever reason, it does not have power to make the directives of a penal nature or to direct enforcement of those directives for several reasons. First, Section 5(11) of the http://www.kenyalaw.org - Page 4/34

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Law Society of Kenya v Attorney General & another [2021]

Case Law

Country

Kenya

Country Location

Latitude: 2.2319662848575907

Longitude: 37.627257845273796

Country Location (linked Case Law): Kenya

Decision Date: 18 de ago. de 2021

Case Status: Closed

Case Outcome (Procedural)

Motion Granted/Motion Denied

Case Outcome (Disposition)

Injunction or Order Granted

Keywords

Public Order

Court Name: IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

Case Number: Constitutional Petition E327 of 2020

Case Summary: Facts The Law Society of Kenya (LSK) challenged the constitutionality of Section 5 of the Public Order Act and the legality of directives issued by the National Security Advisory Committee (NSAC) on 7th October 2020, which were later ratified by the Cabinet on 8th October 2020. These directives aimed to regulate public gatherings and processions to curb the spread of COVID-19. The LSK argued that these measures infringed on fundamental rights, including freedom of expression, assembly, and association.

Issue Whether the directives issued by the NSAC and ratified by the Cabinet were unconstitutional. Whether Section 5 of the Public Order Act was unconstitutional. Rule The constitutionality of laws and directives was evaluated under Articles 10, 19, 20, 21, 24, 27, 29, 32, 33, 34, 36, and 37 of the Constitution of Kenya, which protect fundamental rights and freedoms. The limitations under Article 24 of the Constitution were central to determining whether the directives and laws were justifiable in an open and democratic society.

Analysis The Court analyzed the directives and the role of NSAC in the context of the Kenyan Constitution.

Legality of NSAC and its Directives:

The Court scrutinized the legal standing of NSAC, which was not established under the Constitution or any statute. NSAC was identified as an administrative body within the Executive, lacking the authority to issue binding directives, especially those affecting the fundamental rights of citizens. The Court found that the directives issued by NSAC, later ratified by the Cabinet, were unconstitutional because they overstepped the constitutional limits by directing the National Police Service on how to perform its duties. This contravened Article 10(2)(a) and Article 245(2)(b) and (4) of the Constitution(Constitutional_Petition…)(Constitutional_Petition…). Constitutionality of Section 5 of the Public Order Act:

The petitioners argued that Section 5 of the Public Order Act was a colonial relic that unjustifiably restricted the freedoms of assembly, expression, and association. The Court noted that this section had been upheld as constitutional by the Court of Appeal in a previous case. However, Justice Mrima expressed a dissenting view, highlighting that the law was outdated and prone to abuse, as evidenced by its history of suppressing dissenting political views. Nevertheless, the Court was bound by the principle of stare decisis and upheld the constitutionality of Section 5 as determined by the Court of Appeal(Constitutional_Petition…)(Constitutional_Petition…). Conclusion The Court ruled that the directives issued by NSAC and ratified by the Cabinet were unconstitutional and void. However, the petition challenging the constitutionality of Section 5 of the Public Order Act was dismissed, as the Court adhered to the binding precedent from the Court of Appeal.

Case Significance: This case underscores the importance of adhering to constitutional mandates in the exercise of executive power, particularly in matters affecting fundamental rights and freedoms. The ruling highlights the judiciary's role in curbing executive overreach and emphasizes the need for statutory laws to be updated in line with constitutional provisions to prevent abuse of power.

Related Law

Public Order Act [1950]

Source Name and URL: eKLR

Notes: he directives issued by NSAC on 7th October 2020 and ratified by the Cabinet on 8th October 2020 were declared unconstitutional, ineffective, and void ab initio. The Court upheld the constitutionality of Section 5 of the Public Order Act.

Collection

CIPIT

Primary Documents

Constitutional_Petition_E327_of_2020.pdf
English
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Supporting files

pdf

Directive.pdf126.9 kB

CYRILLA: Global Digital Rights Law

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Law Society of Kenya v Attorney General & another [2021]

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