City lawyer joins Cord in opposing security laws

The newly enacted Security laws could be used to abuse the rights of money laundering suspects, a city lawyer told the High Court on Wedneday, adding a new twist to the ongoing legal battle between the government and the Opposition.

Samuel Ng’ang’a Njuguna, who is one of the three petitioners in the Security laws hearing, told a five-judge bench that a provision empowering the prosecution to withhold evidence until before a trial, should be quashed because it could be used to detain innocent Kenyans without providing proof of the crime.

The situation will be worsened by taking away the power of the magistrate’s court to grant bail to such suspects even in situations where it is allowed, he added.

Mr Njuguna’s petition has been consolidated with that of the Coalition for Reforms and Democracy (Cord) and Kenya National Commission on Human Rights (KNCHR). The consolidated suit goes into the second day of hearing Thursday morning.

Justices Isaac Lenaola, Mumbi Ngugi, Louis Onguto, Hilary Chemitei and Hedwig Ong’udi reserved Wednesday’s session for Cord, KNCHR and Mr Njuguna.

Attorney General Githu Muigai and interested parties supporting the laws such as the Commission for the Implementation of the Constitution and the Jubilee alliance will present their arguments on Thursday.

Mr Njuguna wants sections 16, 20 and 21 of the amended Security Act to be rendered null and void, saying they are unconstitutional.

“Section 16 of the Security Act provides that an individual can be accused under the Money Laundering Act without being notified of the evidence against him until immediately before trial. This means the accused person shall never know the case to face until after he is in the dock,” he said.

Mr Njuguna said that withholding evidence until trial will prevent accused persons from preparing their defence, which is a violation of one’s right to a fair trial.

READ: High court suspends parts of new security laws

He also expressed fears that the police and anti-corruption authorities may abuse the law by arresting money laundering suspects and prevent them from communicating with their lawyers and family while purporting to be gathering evidence.

The contested Section 16 is among the eight clauses that were suspended by Justice George Odunga on January 2. Justice Odunga also suspended sections 12, 26, 29, 48, 56, 58 and 64.

Section 16 of the Act also allows the police to charge narcotic drug trafficking, organised crime and human trafficking suspects without furnishing them with evidence until during trial.

Supporters of the law have argued that it is aimed at stopping suspects from retracting in court statements made during their arrest.

Mr Njuguna’s lawyer, Manasses Mwangi, said that police and anti-corruption officers may harass lawyers in the course of investigations while invoking the same provisions, and that they cannot be trusted with such powers.

Opposed

“The officers have always harassed advocates and interfered with the advocate-client confidentiality under the guise of investigating economic crimes. The Act is now clothing the police with a formidable disguise to arrest an advocate even while inside the court room,” Mr Mwangi said.

He also opposed amendments that allow the prosecutor to use electronic evidence without submitting original copies of the same to the court.

Mr Mwangi held that allowing copies to be used without original copies for verification will put into doubt the authenticity of the evidence.

“Admittance of unverifiable copies will only lead to conduct of sham trials which amount to a traversal of justice. It will further act as an umbrella for interfering with the true nature of the electronic evidence,” he added.

Cord, the first petitioners in the suit, held that the security laws were passed irregularly.

Siaya senator James Orengo, who is representing the Opposition coalition, accused Parliament of going against the Constitution’s provisions as regards enactment of laws in a bid to hurriedly pass the amendments.

Mr Orengo and Cord insist that the Security Bill was one that concerns counties and should not have been up for debate in Parliament. He faulted National Assembly Speaker Justin Muturi for going against the Standing Orders.

“Looking at the Bill as it is, there is no statement as to whether this Bill concerns counties, which is a violation of Standing Orders. This is what happens when you rush through things. Even before coming to the procedure that was used in enactment, it is clear that this is a Bill for counties,” Mr Orengo said.

Cord said that Mr Muturi also failed to indicate the financial implications of the Bill, which is also against the Standing Orders.

The hearing continues until Friday, when the judges are expected to give the parties a ruling date.