12 sections of Security Amendment Bill 2014 unconstitutional rules High Court Judges

12 sections of Security Amendment Bill 2014 unconstitutional rules High Court Judges

• The following is a brief of the High Court ruling on Security Amendment Bill 2014
• On December 18, 2014 the Kenya parliament passed a legislation seeking to amend 22 existing laws, the security amendment bill 2014. 
• A day later the president signs the security amendment bill 2014 into law.
• Few days after the presidential signing of the law, the opposition coalition (CORD) together with Kenya National Commission on Human Rights files a case in court challenging several sections of the new law on grounds that they violate the Bill of Rights as enshrined in the Constitution of Kenya 2010.
• On 2^nd January, 2015 Judge odunga suspends 8 sections of the new law. In his ruling Judge Odunga ruled that all state officials exercise delegated authority and that the sovereignty of the country rests with people of Kenya.
• On 23^rd February 2015 a five bench High Court Judges appointed by the Chief Justice declares 12 sections of the new law unconstitutional.

1.  The Judges held that section 12 of the Act is unconstitutional because it restricts freedom of expression and did not have a bearing on the fight against terrorism. Section 12 had amended the Penal Code making it criminal to publish or broadcast through print, digital or electronic means, or images of the dead or injured persons likely to cause fear or alarm in the general public, or disturb the peace. Conviction would have attracted a fine of 5 million shilling.

2.  The Judges ruled that the section allowing the President to nominate a person for appointment as the Inspector General of Police did not violate the constitution as the mandate is the President’s.

3.  The High Court Judges quashed section 48 of the Act. Section 48 sought to introduce section 18A in the Refugees Act which placed a ceiling on the number of refugees allowed to stay in Kenya to 150,000. The Judges noted that the state had not indicated how it was to deal with the remaining 300,000 who were to be affected by the new legislation.

4.  The provision allowing the police to apply for further detention of a suspect beyond 24hours was retained by the Judges saying it did not violate the rights of the arrested person.

5.  However the Judges ruled that all evidence has to be disclosed early enough to allow the accused prepare a defense, rejecting the provision allowing that some evidence may only be disclosed to a witness just before the trial claiming it violated the right to be informed in advance the evidence to be relied on by the prosecution. 

6.  Allowing the state to appeal against the granting of a bond or bail to terror suspects and those charged with security oriented crimes, the High Court Judges ruled that the provision did not violate the right to be released on bail.

7.  The High Court Judges held that section 42A which allowed the state to produce evidence in camera was against an accused person’s right noting that in such case the accused could not have an opportunity to interrogate the same and prepare for defense. The Judges noted, “Section 42A has introduced a blanket right to the prosecution in which the accused person has no time to prepare for defense or contact his/her lawyer. Discloser of evidence ought to be done in advance

8.  The Judges also found section 20 of the Amended Act to be unconstitutional. Section 20 introduced Section 36A making it optional for the court to grant an accused bail. “There is no justification to the amendments, they noted”

9.  Declared unconstitutional also is the creation of National Police Service Board. The board was introduced to deal with the discipline of senior police officers. The High Court held that the board creation would bring conflict between the board and the National Police Commission.

10.Taping of private telephone conversation by National Intelligence Service was declared legal because the investigating officer is still required by law to seek a warrant from court of law before tapping or planting any device designed to gather information. “The scale tilts for good adding that the right to privacy is not absolute” they added.