Court orders parties to agree on how to balance security concerns and the rights of the residents following the Lamu Curfew

Muslims for Human Rights (Muhuri) and 4 Others V Inspector General of Police and 2 Others

Petition No. 62 Of 2014

High Court of Kenya at Mombasa

Edward M. Muriithi J.

December 23, 2014.

Reported by Njeri Githang’a

Brief facts

The case before the court was predicated upon alleged contravention of the Bill of Rights by the imposition of a curfew by the Inspector General of Police, in Lamu purportedly in exercise of powers conferred upon the former office of Police Commissioner under the Public Order Act cap 56. It was reasoned that the Constitution of Kenya, 2010 did not contemplate imposition of curfew and the Inspector General of Police was not empowered to declare a curfew and that, in any event, the extent of the curfew in terms of duration and area was unlawful.  It was also contended that the imposition of curfew specially affected and discriminated against the residents of Lamu on account of their religion, socio-economic activity and geographical climatic realities.

The petitioners hence sought for an order of injunction lifting the curfew imposed by the Inspector general of Police as an interim relief pending the hearing and determination of the main Petition.

Issues

         i.            What were the principles for the grant of injunction or conservatory orders under the constitutional litigation?

       ii.            Whether the fact that the Constitution did not set out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act. 

      iii.            Whether the powers conferred upon the Police Commissioner under section 8 of the Public Order Act could be exercised by the successor in office of Inspector General of Police.

    iv.            Whether the provisions of the Public Order Act which allowed the imposition of curfew were a limitation on the rights and fundamental freedoms

      v.            Whether imposing less restrictive means as opposed to a curfew would balance the two interests of public safety and security and the enjoyment of the Bill of Rights

Constitutional Law - conservatory orders - principles to be considered for the grant of conservatory orders under constitutional litigation– where the Inspector General of Police had imposed a curfew in Lamu- where It was also contended that the imposition of curfew specially affected and discriminated against the residents of Lamu on account of their religion, socio-economic activity and geographical climatic realities– whether a conservatory order could be issued under the circumstances.

Constitutional Law-fundamental rights and freedoms-right to public safety and security-curfew-authority to impose a curfew- whether the fact that the Constitution did not set out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act- Public Order Act cap 56, section 8

Constitutional law-fundamental rights and freedoms-limitation of rights-curfew- balancing competing constitutional rights-whether imposition of curfew would limit some fundamental rights and freedoms - whether imposing less restrictive means as opposed to a curfew would balance the two interests of public safety and security and the enjoyment of the Bill of Rights

Constitutional Law-interpretation of constitutional provisions-transitional and consequential provisions-whether the Inspector General of Police was the legal successor of the office of Police Commissioner and therefore had authority to exercise the powers of the Commissioner of Police in the Public Order Act in relation to imposition of curfew-Constitution of Kenya, 2010, Section 7 and 33 of the Sixth Schedule of the Constitution

Relevant provisions of the law

Public Order Act, cap 56 Laws of Kenya, empowers of the Commissioner of Police and Provincial Commissioner to declare curfew as follows:

 “8. (1) The Commissioner of Police or a Provincial Commissioner may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area (being, in the case of a Provincial Commissioner, within his province) and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.”

Constitution of Kenya 2010

244. The National Police Service shall—

 (a) …

(b)…

 (c) comply with constitutional standards of human rights and fundamental freedoms;

Section 33 provides as follows:

“33. An office or institution established under this Constitution is the legal successor of the corresponding office or institution, established under the former Constitution or by an Act of Parliament in force immediately before the effective date, whether known by the same or a new name.”

Section 7 of the Sixth Schedule of the Constitution provides that –

7. (1) All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

Held,

1.    The emerging principles for the grant of injunction or conservatory orders under the constitutional litigation, were

a.     the applicant had to demonstrate an arguable case - sometimes called prima facie arguable case - the reference to arguable case distinguishing it from the prima facie test of the Giella v. Casman Brown traditionally applied in regular civil cases;

b.     the applicant had to show that the petition would be rendered nugatory  or that the damage that would be suffered in the absence of the conservatory order would be irreversible; and,

c.     in constitutional cases, the public interest in the matter would be considered and generally upheld

2.      All the courts required for the grant of conservatory orders was a prima facie case or a prima facie arguable case; irretrievability or irreparability if conservatory order was not granted and the subject matter was irretrievably lost (akin to the irreparability by damages test) and a balancing of the interests of the applicant and the respondents. There was confusion as to whether the test of standard of the applicant’s case is on the prima facie or arguable case. Once accepted that the court could not determine the disputed merits of the case at the interlocutory stage, the correct standard had to be the standard of arguable case.

3.      The argument that the petitioners were not residents of Lamu did not hold much weight in view of the expanded standing given by articles 22 and 258 of the Constitution, and indeed the petition pleaded that apart from 1^st petitioner organization, the human petitioners were residents of Lamu County.

4.      The object of the decision on pleading infringement of the Constitution with particularity with respect to the rights and manner of infringement was a requirement of good pleading so that the respondent was able to know with precision the case that he had to meet and so that the court understood the exact nature of intervention necessary.  It was the same requirement codified under rule 10 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

5.       Following the promulgation of the Constitution of Kenya 2010 the position in the Police force of a Police Commissioner was abolished and replaced with the office of the Inspector general of Police as the head of the Force.  The Constitution of Kenya 2010 at section 33 of the Transitional and Consequential Provisions which had been held by the Court of Appeal to be an integral part, with of equal force as other provisions, of the Constitution, appeared to allow the Inspector General to exercise the powers of the Commissioner of Police to declare a curfew. 

6.      In terms of section 33 of the Sixth Schedule of the Constitution of Kenya 2010 it would appear that the Inspector General of Police was the legal successor of the office of Police Commissioner and therefore had authority to exercise the powers of the Commissioner of Police in the Public Order Act in relation to imposition of curfew.

7.      In view of the section 33 of the Sixth Schedule of the Constitution and on the principle of interpretation that the Constitution was always speaking, the applicant did not have an arguable case with respect to the contention that the powers conferred upon the Police Commissioner under section 8 of the Public Order Act could not be exercised by the successor in office of Inspector General of Police.

8.      With regard to the unconstitutionality of the curfew, article 244 of the Constitution provided for the operations of Police Service to be consistent ‘with constitutional standards of human rights and fundamental freedoms’

9.      The Constitution provided under article 244 for the exercise of police function without laying out the tools that the police could use in their operations.  The Public Order Act, the National Police Service Act and other relevant Acts then made detailed provisions on the exercise of police function.  It could not be said that in not setting out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act.  The trial court would make determination thereon upon full submissions on the matter.  The provisions on curfew had a regime of accountability based on the requirements under article 244 for compliance with the standards of human rights contained in the Bill of Rights with exception only as permitted under article 24 of the Constitution.

10. There was no paradox in the constitutional provisions of article 244 establishing and giving police power to the National Police Service at the same time requiring that the operations of the National Police Service be consistent with the Bill of Rights.  It was the reality of modern interplay of the guarantees in the Bill of Rights against the interests of public security and safety through police function in an open democratic society based on respect for human rights and dignity of the person.  The correlation of police power to the Bill of Rights meant that the Constitution recognized the need to provide for the security of the citizens and at the same time ensure enjoyment by rights and fundamental freedoms of the Bill of Rights; that the exercise or imposition of police powers should not unreasonably restrict the enjoyment of the rights and freedoms.  The test for unreasonableness of police action was the criteria set out in article 24 of the Constitution.

11. The petitioners had an arguable case as to whether the imposition of the curfew, assuming the Inspector General had power to do so and the curfew was a lawful tool of police functionality, did unreasonably restrict the rights of the citizen’s resident in Lamu County contrary to article 24 limitation threshold.  The determination of that matter was province of the full trial, and the decisions on abuse of power and illegality would fall for in-depth consideration at the trial.

12. The Curfew was one of police devices for prevention and combat of crime, and the Police were in terms of article 244 of the Constitution entitled to utilize it subject to observation of the demands of human rights as prescribed under article 244 (c) and to the extent permitted by the provisions on limitation to rights under article 24 of the Bill of Rights.

13. The provisions of the Public Order Act which allowed the imposition of curfew were a limitation on the rights and fundamental freedoms such as, among others, movement, assembly, association and property in denying opportunity to earn living through night fishing and other socioeconomic enterprise as well as participate in local cultural and religious activities, and it could even amount to discrimination as alleged by the petitioners.

14. Without challenging the constitutionality of the Public Order Act or sections thereof and seeking declaration of invalidity in that behalf, in accordance with article 3 of the Constitution, the petitioners had to be bound by the provisions of the Act as an imperative of the doctrine of the Rule of Law.

15. The consideration of irreparability of the situation should the sought conservatory order be denied resolved itself in the negative when compared to the real irretrievability of any lives that could be lost due to the enabling environment that could be created by lifting of the curfew orders.  The people of Lamu could not remain in perennial curfew to curb insecurity hence the Respondents had to in the very due course of time implement remedial preventive security arrangements that made it difficult, if not impossible, for attacks on the lives of the residents of the county in the massacre proportions witnessed in Mpeketoni earlier in the year leading to the imposition of the curfew.

16. The interests of public safety and security and protection to the right to life pleaded in the grounds of opposition filed by the respondents had to, in the absence of a replying affidavit filed on behalf of the applicants be taken to be the justification offered for the limitation of the rights of the residents of Lamu through the curfew.  In seeking a balance of the rights of the petitioners as representing the residents of Lamu County and the public interest to the protection of the lives and property of others, it was clearly a case of upholding the Bill of Rights for all the parties involved, subject only to the limitations recognized by the Constitution itself.

17.  In upholding the premium thereby placed on the two interests of public safety and security and the enjoyment of the Bill of Rights, the Court had to consider that the enjoyment of the rights could therefore be limited only as provided by the Constitution.  While acknowledging that there was relation between the limitation by imposition of curfew and its purpose of preventing the mounting of possible terrorist attacks, there could have been less restrictive means to achieve the purpose.

18. Without dictating the less restrictive means, reducing the timelines for the curfew and saving of occasions or celebrations such as the Eidd ul Adh'a which prompted the Petition; making exceptions with regard to days, times and areas or regions of the imposition of the curfew, and increasing complementary police surveillance, escort or monitoring and community policing strategies could properly amount for less restrictive means in terms of reduction of the scope, period, nature and extent of the restriction and the geographical region of the curfew limits.  The object had to be to ensure the highest level of enjoyment of rights and freedoms for all while addressing the public safety and security concerns engendered by the situation in the area.

Orders

1.     The respondent directed in consultation with the petitioners, within 14 days from the date of the ruling, to meet and develop, and report to the court, a revised scheme of such measures as would, consistently with the Bill of Rights, meet the public safety and security needs for the affected region.

2.     Should the respondents fail, within the fourteen (14) days allowed, to devise in consultation with the applicants and with approval of the court, a scheme of curfew administration that allowed for reasonable protection and enjoyment of the Bill of Rights as commanded by article 244 of the Constitution, the curfew order made by the Inspector General of Police on June 20, 2014 and extended from time to time would be extinguished and be of no effect thenceforth.  For purposes of compliance, the matter would be mentioned on January 6, 2015.

3.     Costs to be in the cause.