Kenya National Commission on Human Rights v Attorney General & 2 others [2020] eKLR Case Summary

Court
High Court of Kenya at Garissa
Category
Civil
Judge(s)
Justice C. Kariuki
Judgment Date
October 20, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Kenya National Commission on Human Rights v Attorney General & 2 others [2020] eKLR


1. Case Information:
- Name of the Case: Kenya National Commission on Human Rights v. Hon. Attorney General & Others
- Case Number: Constitutional Petition No. 11 of 2017
- Court: High Court of Kenya at Garissa
- Date Delivered: October 20, 2020
- Category of Law: Civil
- Judge(s): Justice C. Kariuki
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving two primary legal issues:
1. Whether the constitutionality of sections 8 and 9 of the Public Order Act had already been determined, rendering the issue res judicata.
2. Whether public participation is required in the implementation and management of curfews imposed under the aforementioned sections of the Public Order Act.

3. Facts of the Case:
The petitioner, the Kenya National Commission on Human Rights (KNCHR), is a constitutional commission established to promote and protect human rights. The respondents included the Attorney General, the Cabinet Secretary for Interior, and the Inspector General of Police. The petition arose following the imposition of curfews in Mandera County due to increased terror threats from the Al-Shabaab militia after a series of attacks, including the massacre of students at Garissa University in 2015. The petitioner argued that the curfews imposed were unreasonable, illegal, and unconstitutional, infringing on the rights of the residents of Mandera County.

4. Procedural History:
The petition was filed on August 30, 2017, with a supporting affidavit from the KNCHR's Secretary/CEO. The respondents filed grounds of opposition on October 10, 2017. The petitioner initially sought several declarations regarding the unconstitutionality of the curfew orders and section 8 of the Public Order Act but later abandoned the challenge to the constitutionality of section 8, focusing instead on the manner of implementation of the curfews and the lack of public participation.

5. Analysis:
- Rules: The court considered various constitutional provisions, including Articles 1, 2, 10, 24, 238, and 259, which emphasize the importance of public participation, the rule of law, and the protection of human rights.
- Case Law: The court referenced previous rulings, particularly the Court of Appeal decision in *Haki Na Sheria Initiative v. Inspector General of Police & 3 Others*, which upheld the constitutionality of sections 8 and 9 of the Public Order Act, asserting that such provisions are justifiable for maintaining public order and security.
- Application: The court concluded that the issue of the constitutionality of sections 8 and 9 was res judicata, as it had been previously settled by higher courts. Regarding public participation, the court acknowledged the constitutional requirement for public involvement in governance but determined that in matters of national security, such as curfews, public participation could be limited to protect national interests. The court ruled that the imposition of curfews did not violate constitutional rights, as they were necessary for ensuring safety in a terror-prone region.

6. Conclusion:
The court dismissed the petition, ruling that it lacked merit. It reinforced that the constitutionality of the provisions in question had been previously determined and that the imposition of curfews, while requiring some level of public participation, did not necessitate full public involvement in circumstances where national security was at stake.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The High Court of Kenya dismissed the petition by the Kenya National Commission on Human Rights challenging the curfews imposed under the Public Order Act, affirming that the constitutionality of the relevant provisions had already been established. The ruling emphasizes the balance between public safety and constitutional rights, particularly in the context of national security, and highlights the complexities of public participation in governance during emergencies. The case sets a significant precedent regarding the limits of public involvement in security matters and the interpretation of constitutional rights in relation to state security measures.

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