CORD vs The Republic of Kenya and 10 Others (2015)

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The actual petitioners in the cases of Coalition for Reform and Democracy (CORD) & 2 others vs Republic of Kenya &10; others [2015] were,

  1. Coalition For Reform and Democracy (CORD) (the 1ST petitioner)
  2. The Kenya National Commission on Human Rights (as the 2ND petitioner)
  3. Samuel Njuguna Ng’ang’a (as the 3RD petitioner)

The respondents were:

  1. The Republic of Kenya
  2. The Attorney General,

with several interested parties like the Director of Public Prosecutions and the Jubilee Coalition with the Law Society of Kenya and the Commission for the Implementation of the Constitution standing in as friends of the court (Amicus Curiae).

The petition at hand challenges the constitutionality of the Security Laws (Amendment) Act 2014 alias ‘SLAA’ for the purpose of the case. It was Act no.19 of 2014 which was published on the 11th of December, debated and passed on the 18th and got a presidential assent on the 22nd of the same month.

The issues raised in the case of CORD vs The Republic of Kenya and 10 Others (2015) were:

  1. The extent by which the court can inquire into the legislative arm and in particular whether the courts can interrogate parliamentary proceedings.
  2. The nature and scope of the constitutional obligation of Parliament to facilitate public involvement in the legislative processes and the consequences of failing to comply with such.
  3. Whether the amendments made in the security act of parliament violate the bill of rights and thus inconsistent with the constitution.
  4. Should the court find any limitation then it must determine whether the limitation is justifiable in a free and fair democracy.

Factual background:

The bill was tabled in the house security committee on the 8th December 2014 and published on the Kenyan gazette which on the following day it was introduced  for the first reading in the national assembly.

NB: The period was reduced from 14 days to 1 day pursuant to standing order No.120

Public participation on the bill was published on both Standard and Daily Nation news paper and stated it would be on the 10th, 11th and 15th of December.

Despite the days published on the newspaper for public participation, the bill went ahead to be tabled for the second hearing on the 11th contrary to standing order 127 which requires a bill to be brought for the second reading only after public participation. On the 18th it was brought in for the third reading and passed on the 19 where it received presidential assent.

First Ruling

The judge gave conservatory orders suspending some sections of the act Pursuant to Article 165(4) which requires that

“Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) Shall be heard by an uneven number of judges being not less than three, assigned by the chief justice.”

The following were the prayers made:

  1. A declaration that the Security (amendment) Bill 2014 was not procedurally debated by the National Assembly accordingly thus unconstitutional and therefore null.
  2. A declaration that the presidential assent was unconstitutional and improper with the National Assembly failing to comply with Article 110(3) and (4) of the Constitution of Kenya and therefore invalid hence null and void.
  3. A declaration that the Security Laws(amendment) Bill was unconstitutional and illegal as the national assembly failed to comply with the mandatory provisions of Article 10(2)(a) and 118 of the Constitution of Kenya that call for public participation and is therefore invalid, null and void.
  4. A declaration that the limitations made in the Security Laws (amendment) Act are not justified in the open democratic society based on human dignity, equality and freedom, have no rational connection with the objective and extent of the limitation, are unconstitutional, illegal and null.
  5. A declaration that the provisions of the Security Laws (amendment) Act are inconsistent with the constitution and therefore null and void to the extent of its inconsistency and the provisions enlisted are a breach of the violation of the Constitution and therefore unconstitutional, illegal, null and void.

Kenya National Commission for Human Rights prayers

  1. A declaration that this petition is brought in the public interest
  2. A conservatory order suspending the operations of the security law (amendment) act in its entirety pending the hearing and determination of this petition.
  3. A declaration that the processes by which the Security Laws (amendment) Act was passed was in violation of the Constitution.

NB: The bill did not pass through the senate as the issue did not touch on counties after a discussion by speakers of both houses-A.G. via Solicitor General

The DPP stated that the petition does not satisfy the requirements of Article 22(1) which renders the petitioners claims unjustifiable and the court has no jurisdiction to entertain the petition.

The Jubilee Coalition cited the case of Kennedy vs UK (ECHR Application No. 26839 of 2005), that the SLAA was meant to combat terrorism as has been done in many countries globally.

The LSK cited two cases in determining the question on public participation.

  1. Robert Gakuru & 5 Others vs Governor of Kiambu (2014)
  2. IPOA vs Attorney General & Others (2014)

Article 258 of the Constitution was also cited

Jurisdiction of the court on Article 165(3)

The judges in their rulings made the following conclusions;

  • The Constitution has given the High Court wide interpretive powers in regards to Article 165(3)(d) of the Constitution read together with Articles 22(1) and 23(1). It however noted that the court cannot be turned into a forum where losers in parliamentary debates rush to assert revenge on their adversaries.
  • In as much as the court objected on the unconstitutionality of some sections on the free press on the SLAA, the media ought to know that the issues raised in SLAA are not idle. Reckless reporting of insensitive information as well as the tort of privacy are well established in other jurisdictions and may also apply in Kenya, and may attract heavy penalties.

The Ruling in the case of CORD vs The Republic of Kenya and 10 Others (2015)

  • On whether the court has jurisdictions to listen and determine the petition at hand

The court is bound to the doctrine of avoidance but doesn’t apply in the circumstances at hand of determining the constitutionality of law.

That the doctrine of the separation of powers does not bar the court from examining legislative as well as the executive roles as the constitution is the supreme law of the land.

The Kenya national commission on human rights is an independent commission that can lodge a petition alleging violation of the constitution by any state organ.

  • On whether the process of the enactment of the SLAA was constitutional

The speakers of both houses consulted to decide that SLAA was not a bill involving the counties. There was also reasonable public participation leading to the enactment of the SLAA finding no violation of the standing orders as proved by the evidence produced before the court. This leads to concluding that the presidential assent was constitutional with the laid up procedures.

  • On the constitutionality of the sections 12, 64, 34, 16, 20, 26, 48 and 95.

The above stated sections of the security law (amendment act) are hereby declared unconstitutional and application of the act can only be out of exclusion of these.

  • As for the costs, let each party bear its cost as a matter of discretion to the court.

Petition heard and ruling delivered by the following High Court judges:

Justice Isaac Lenaola

Justice Mumbi Ngugi

Justice Hedwig Ong’udi

Justice Hillary Chemitei

Justice Joseph Louis Onguto