INTERPRETATION AND BENEFITS OF JUSTICE ODUNGA’S RULING ON THE SECURITY LAW (AMENDMENT) ACT, 2014
1. MEDIA FREEDOMS UNDER ARTICLE 33 OF THE CONSTITUTION: Section 12 of the Security Laws (Amendment) Act 2014 and the new Section 66A (1) of the Penal Code have been stayed as the provisions go beyond the limitations found in Article 33(2) of the Constitution. The Media can now continue to broadcast and publish victims of terrorists and other attacks without fear of a hefty fine of kshs 1 million of being charged of conspiring to commit acts of terrorism.
2. RIGHT TO A FAIR TRAIL: The provisions contained in Section 66A (2) of the Penal Code have been stayed as they are alleged to be oppressive and are inconsistent with and contravenes Articles 28 and 29 of the Constitution in that they may entail or lead to the trial, punishment and conviction of a person who had no knowledge of ongoing investigations or security operations of the National Police Service or the Kenya Defence Forces.
3. RIGHT TO FAIR TRIAL: Section 16 of the Security Laws (Amendment) Act and Section 42A of the Criminal Procedure Code have been stayed and Kenyans continue to enjoy the protection of the right to fair trail under articles 25 and 50 of the Constitution.
4. RIGHT TO PRESUMPTION OF INNOCENCE: The ruling has stayed the amendment under Section 344 (a) of the Criminal Procedure Code as amended in the Security Laws (Amendment) Act which authorizes automatic police supervision that contravenes the provisions of Articles 24 on limitation of rights and Article 50 on presumption of innocence as it places a blanket assumption of guilt post conviction and sentence without justification of the extent to the limitation of rights to freedom of movement and association under Articles 36 and 39 of the Constitution.
5. RIGHT TO FAIR TRAIL under Article 25 and 50 of the Constitution will continue to be enjoyed as Section 26 of the Security Laws (Amendment) Act and Section 20A of the Evidence Act as amended have been stayed as they are deemed to be or are inconsistent with and contravene Sections 25 and 50(2) of the Constitution and are otherwise a derogation of the right to a fair trial which cannot be limited by dint of Section 25 of the Constitution.
6. RIGHT TO REMAIN SILENT AND NOT SELF INCRIMINATE ONES SELF UPHELD and will continue to be enjoyed as the provisions of Section 29 of the Security Laws (Amendment) Act and Section 59(A) of the Evidence Act as amended have been stayed as they are inconsistent with and contravene Sections 25 and 50(2) of the Constitution and is an abuse and derogation of the right to a fair trial which includes the right to remain silent and not to testify during a trial. The right to a fair trial therefore cannot be limited in any circumstances by dint of Article 25 of the Constitution.
7. PRINCIPLE OF NON REFOULMENT: which is a principle of international law (United Nations Conventions on status of Refugees) which protects refugees fleeing from war torn countries from being expatriated: The Court stayed Section 48 of the Security Laws (Amendment) Act 2014 and Section 16A of the Refugees Act because they are inconsistent with and contravene Articles 2(5) and (6), 21(4) and 59(2) (g) and 59(2) (g) of the Constitution.The provisions of Section 48 of the Security Laws (Amendment) Act 2014 and Section 16A of the Refugees Act have the potential of being abused and used in a discriminatory manner to target communities of the Somali or other such origin from North Eastern Province.
8. SENATE SUPERVISION OF THE NATIONAL INTELLIGENCE SERVICES: Section 58 of the Security Law (Amendment) Act, 2014 and section 58 of the National Intelligence Service Act HAVE BEEN STAYED AND the Senate will continue exercising its supervisory role over the NIS as the amendment in the Act contravenes the express provisions of Articles 238 (2) of the Constitution which provides that the national security shall be promoted and guaranteed in accordance with and subject to the authority of this Constitution and Parliament.
9. NIS COVERT OPERATIONS stayed: Section 56 of the Security Laws (Amendment) Act 2014 and Section 42 of the National Intelligence Service Act are inconsistent with and contravene Articles 19, 20(1), (2), (3) and (4), 28, 29, 31, 47, 49 and 50 of the Constitution in that the provisions offends the establishment and creation of the Republic of Kenya as an open democratic state based on human dignity, equality and freedom, the security of the person, privacy where each personâ€™s home is her or his castle, with fair administrative systems and action and the rights of arrested persons and of those on trial are protected.
10. POWER TO DETAIN STAYED: Section 30F (1) and (2) of the Prevention of Terrorism Act is inconsistent with and contravenes Articles 33 and 34 of the Constitution to the extent that the provisions thereof are oppressive and not reasonably justifiable in an open democratic society.
Above all, the Court ruled that the sovereignty of the Kenyan People is Supreme with respect to the Constitution and that all Public officials and Institutions exercise Power donated to them by the People through the constitution. To that extent, any Law that is inconsistent with the Constitution is Null and Void to the extent of that inconsistency, and Nobody therefore is above the Law.
It is my considered Opinion that Justice Odunga’s ruling of this morning on its face value and implication is the best new year gift for all law-abiding Kenyans.