The High Court on Monday walked a tightrope with its ruling on controversial security laws that Parliament passed during a chaotic sitting last December – choosing to balance the petitioners’ prayer for total nullification of the law against the emerging national security threats.
The five-judge bench that Chief Justice Willy Mutunga named to hear the case declared seven provisions of the Security Laws Amendment Act 2014 null and void, including Section 12 and Section 66A of the penal code that sought to restrict the media’s coverage of security-related events.
“Section 12 of the SLAA and Section 16 of the penal code are declared unconstitutional for violating freedom of expression and the media guaranteed under the Constitution,” the judges said.
Judges Isaac Lenaola, Mumbi Ngugi, Louis Onguto, Hilary Chemitei and Hedwig Ong’udi ruled that the provisions were likely to interfere with the freedom of press.
The two sections prohibited the media from publishing or broadcasting any material that is deemed to undermine investigations or security operations.
The provisions required media houses to get permission from the police before publishing any photos or videos of dead or injured persons from disaster scenes.
Concerns had been raised about the impact of the laws on investigative journalism, as the opposition Cord claimed the authorities intended to use the new laws to stop publication of information they did not want the public to know about.
The judges warned that coverage of security-related matters has to be done in line with professional ethics, and that violation of the same will not go unpunished even as they warned the media against irresponsible reporting.
“The role of the media, freedom of the press and self-regulation have also come to the fore. Reckless reporting will not escape sanctions. Blogs and websites will not escape these sanctions either,” the judges said, bringing bloggers into focus for the first time.
The decision, which the opposition Cord hailed as a victory, is likely to go down well with the Jubilee government which has in the past argued that finding less than 10 provisions out of the more than 100 passed in the omnibus amendments meant the new laws were largely in line with the Constitution.
The High Court made the decision after hearing a petition filed by the Coalition for Reforms and Democracy (Cord), the Kenya National Human Rights Commission and businessman Samuel Ng’ang’a Njuguna seeking nullification of the security laws.
The judges also set aside sections 16, 20, 26, 34, 48, and 95 of the contested laws arguing that they risked violating basic rights provided for in the Constitution.
Section 16 and 20 allowed police to hold suspects in custody without informing them of their offences while denying them bond or bail. It also allowed National Intelligence Service officers to enter premises and arrest suspects without court orders. Section 26 provided that silence during trial would amount to admission of guilt.
Section 48 gave authorities power to send a refugee back to their country of origin, which the judges said would put the country at risk of breaking international treaties.
“A refugee is a special person and his or her rights must be protected. Furthermore, Kenya is a signatory to international treaties. Section 48 is declared unconstitutional for violating the principle of non-refoulment, which is part of the laws of Kenya,” the judges said.
Njoroge Mwangi, acting for Attorney-General Githu Muigai, asked the judges to freeze implementation of the judgment as he planned to move to the Court of Appeal for a different opinion.
But the judges directed him to make a formal application and explain the exact temporary orders he was seeking.
In what amounted to a setback for Cord, the judges struck out the argument that the laws were passed irregularly, arguing that no evidence had been brought before court to prove the claim.
Despite ruling that no law was broken in passing the Security Laws Amendment Act, the judges held that it was within their mandate to intervene in circumstances where basic rights were at risk of being violated.