A court has dismissed a case by a lobby that challenged the constitutionality of the curfew imposed in four counties within the Northeastern region following the Garissa University terror attack.
Haki Na Sheria Initiative sued the Inspector General of Police and the Interior CS in 2015 alleging that the sections of the law used to impose the curfew were unconstitutional.
It claimed Sections 8 and 9 of the Public Order Act were unconstitutional and the curfew imposed on the residents of Garissa, Mandera, Tana River and Wajir by the Inspector General of Police violated the fundamental rights and freedoms of the residents.
In 2017, the High Court sitting in Garissa ruled in favour of the IG, leading to the appeal. In a judgment delivered on June 19 by Justices W. Karanja, Fatuma Sichale and Jamila Mohammed considered the essence of the sections and were satisfied that the curfew orders and restriction imposed were proportionate means of achieving the Act’s objective of maintenance of public order and were in line with the principles of national security.
The judges were satisfied that in circumstances where public order or safety has been or is at risk of being violated due to factors which include terror attacks or criminal insecurity, the limitation of the affected persons’ rights and freedoms within the context of the sections is justifiable, reasonable and necessary under Article 24 of the Constitution to ensure the delicate balance of the rights of citizens.
"Accordingly, we find that the appeal lacks merit and is hereby dismissed. We uphold the High Court’s finding that Sections 8 & 9 of the Act are constitutional”, the judges ruled.
In the application, the imposition of the curfew followed the heinous terrorist attack which occurred at Garissa University on April 2, 2015, and left at least 148 Kenyans dead and scores of others injured.
Thereafter, the IG imposed a curfew to run in the four Counties during the hours of 6:30pm to 6:30 am from April 3 to April 16, 2015.
From the record, the Internal Security CS extended the curfew to June 16, 2015, and it was lifted following a presidential directive on June 18, 2015.
The lobby, through its coordinator Barre Adan Kerrow, submitted that sections 8 and 9 of the Act contravened a number of fundamental rights and freedoms under the Constitution and other international human rights instruments.
It argued that the sections limited the rights to movement, equality and freedom from discrimination, liberty, freedom of conscience, religion, belief and the right to life and livelihood.
“Sections 8 and 9 of the Act which provide for the imposition of curfew orders and curfew restriction orders respectively were unconstitutional as they provide for the imposition of curfew orders and curfew restriction orders on a class of persons which is discriminatory and contrary to Article 27 of the Constitution," the lobby said.
However, the police defended itself by arguing that the objective of the curfew as well as sections 8 and 9 of the Act was to assist in achieving peace and order in the four Counties.
They added that the limitations of the residents’ rights and freedoms resulting from the curfew were justifiable.
They submitted that the intention behind the impugned provisions of the Act was the furtherance of the rule of law within a particular region of the country in need of order.
“The impugned provisions aim at preserving human life and to prioritise the safety of citizens, maintain peace, order and security of the country; and to ensure the furtherance of the rule of law for the betterment of the residents of the four counties and the country at large," the judgment reads.
The state said it was common ground that without life, citizens cannot enjoy the rights and freedoms alleged to have been violated by the imposition of the curfew.
Edited by Frank Obonyo
