Constitutionality of sections 8 and 9 of the Public Order Act which provided for the imposition of curfews

Haki Na Sheria Initiative v Inspector General of Police & 3 others [2020]

Civil Appeal No 261 of 2018

Court of Appeal at Nairobi

W Karanja, F Sichale & J Mohammed, JJA

June 19, 2020

Reported by Kakai Toili

Constitutional Law – constitutionality of statutes – constitutionality of sections 8 and 9 of the Public Order Act – where section 8 and 9 of the Public Order Act provided for the imposition of curfews – where a curfew was imposed after a terrorist attack so as to maintain order - what were the factors to consider in determining the constitutionality of a statute - whether sections 8 and 9 of the Public Order Act were unconstitutional for limiting the freedom of movement – Constitution of Kenya, 2010 articles 32 and 238(1); Public Order Act (Cap 56) sections 8 and 9.

Jurisdiction – jurisdiction of the Court of Appeal – jurisdiction as a first appellate court - role of the Court of Appeal as a first appellate court.

Constitutional Law – interpretation of the Constitution – interpretation of the bill of rights - what was the nature and purpose of the bill of rights.

Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms - where section 8 and 9 of the Public Order Act provided for the imposition of curfews - where a curfew was imposed after a terrorist attack so as to maintain order - whether the imposition of a curfew after a terrorist attack so as to maintain order was justifiable or reasonable in an open and democratic society – Constitution of Kenya, 2010, article 24; Public Order Act, (Cap 56) sections 8 and 9.

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to equality and freedom from discrimination - where sections 8 and 9 of the Public Order Act prescribed for curfews to be imposed against a class of persons which scenario envisaged different treatment of persons belonging to the class in question - whether sections 8 and 9 of the Public Order Act infringed on the right to equality and freedom from discrimination - whether mere differentiation or unequal treatment amounted to discrimination - Constitution of Kenya, 2010, article27(4) and 238(2); Public Order Act, (Cap 56) sections 8 and 9.

Words and Phrases - differential treatment – definition of differential treatment - a failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured - Black’s Law Dictionary, Tenth Edition.

Brief facts

Following a heinous terrorist attack which occurred at Garissa University in April 2015, the 1^st respondent imposed a curfew to run in Garissa, Mandera, Tana River and Wajir Counties (the four counties) during the hours of 6:30pm to 6:30 am from April 3 to 16, 2015. The curfew was extended by the 2^nd respondent to June 16, 2015 and lifted following a presidential directive. During the pendency of the curfew, the appellant filed a petition in the High Court challenging the constitutionality of the curfew and sections 8 and 9 of the Public Order Act (the Act) on which the curfew was predicated. The High Court dismissed the petition and declined to declare the Act and sections 8 and 9 thereof as unconstitutional. Aggrieved by that decision, the appellant filed the instant appeal.

Issues

1. Whether sections 8 and 9 of the Public Order Act which provided for the imposition of curfews were unconstitutional for limiting the freedom of movement.
2. What was the role of the Court of Appeal as a first appellate court?
3. What was the nature and purpose of the bill of rights in the Constitution?
4. What were the factors to consider in determining the constitutionality of a statute?
5. Whether the imposition of a curfew after a terrorist attack so as to maintain order was justifiable or reasonable in an open and democratic society?
6. Whether mere differentiation or unequal treatment amounted to discrimination.
7. Whether sections 8 and 9 of the Public Order Act which prescribed for curfews to be imposed against a class of persons which scenario envisaged different treatment of persons belonging to the class in question infringed on the right o equality and freedom from discrimination.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 24

1. A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
   1. the nature of the right or fundamental freedom;
   2. the importance of the purpose of the limitation;
   3. the nature and extent of the limitation;
   4. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
   5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Public Order Act, Cap 56

Section 8 - Curfew orders

1. The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service 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 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 authorised by or under the curfew order.
2.  
   1. It shall be a condition of every permit granted under subsection (1) of this section that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry a light visible at a distance of twenty-five feet.
   2. Subject to paragraph (a) of this subsection, a permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
3. A curfew order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for the period specified therein or until earlier rescinded by the same authority or by the Minister as hereinafter provided:

 Provided that no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lesser number of consecutive hours of daylight shall remain in force for more than seven days.

Section 9 - Curfew restriction orders

1. A police officer in charge of the police in a county or a police officer in charge of a police division may, if he considers it necessary in the interests of public order within the area of his responsibility so to do, by order (hereinafter referred to as a curfew restriction order) prohibit, during such hours as may be specified in the curfew restriction order, all persons, or, as the case may be, all members of any class of persons specified in the curfew restriction order, from entering, being or remaining, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew restriction order, in or at any premises specified in the curfew restriction order:

Provided that no person shall, by or in pursuance of a curfew restriction order, be prohibited or prevented from entering, being or remaining in any premises at which he normally resides, or, during reasonable hours of business, work or employment, any premises at which he normally has his place of business, work or employment.

2. A permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.
3. A curfew restriction order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for such period, not exceeding twenty-eight days, as may be specified therein or until earlier rescinded by the same authority or by the Cabinet Secretary as hereinafter provided.

Held 

1. On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should bear in mind that it had neither seen nor heard the witnesses and should make due allowance in that respect. The responsibility of the court was to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence. 
2. A person who alleged the contravention or threat of contravention of a constitutional right had to specifically set out the right infringed and the particulars of such infringement or threat. A perusal of the amended petition on record revealed that the appellant set out the constitutional provisions it deemed were violated by sections 8 and 9 of the Public Order Act. The appellant set out its case to the required standard. From the record, the trial court succinctly laid down the appellant’s submissions and considered the same in the impugned judgment.
3. The bill of rights in Kenya’s constitutional framework was not a minor peripheral or alien thing removed from the definition, essence and character of the nation. Rather, it was said to be integral to Kenya’s democratic state and was the framework of all the policies touching on the populace. It was the foundation on which the nation state was built. There was a duty to recognize, enhance and protect the human rights and fundamental freedoms found in the bill of rights with a view to the preservation of the dignity of individuals and communities. The message flowing from the constitutional text was that rights had inherent value and utility and their recognition, protection and preservation was not an emanation of State largesse because they were not granted, nor were they grantable, by the State. They attached to persons, all persons, by virtue of their being human and respecting rights was not a favour done by the State or those in authority. They merely followed a constitutional command to obey.
4. There was a general, although rebuttable presumption, that a provision of law was constitutional, and that it fell on the party alleging otherwise to prove its claim. When determining the constitutionality of a statute or a provision of the law, it was important to consider the object, purpose and effect of implementation of that legislation. If the effect of the impugned law was to violate constitutional rights, then it had to be declared so and struck down.
5. Article 259 of the Constitution enjoined the court to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law and human rights and fundamental freedoms in the bill of rights, permitted the development of the law and contributed to good governance.
6. Ordinarily, the burden of demonstrating that a right was infringed would be upon the person alleging such violation, as, that person would be in the better position to prove it. Once the case was made out, the burden shifted to the other party.
7.  The objective of the Public Order Act (the Act) should be discernible from the words used by the Legislature and the context of its enactment. The purpose of the Act was evident from the preamble which provided that it was an Act of Parliament to make provision for the maintenance of public order, and for purposes connected therewith. Public order by its very definition presupposed a state of security, peace and stability that was free from criminal activities and violence. It was an integral component in national security which was defined under article 238(1) of the Constitution.
8. The aim of sections 8 and 9 of the Act was the furtherance of the Act’s main objective namely, maintenance of public order. Notwithstanding the fact that sections 8 and 9 empowered different authorities (cabinet secretary and police officer in charge of a county or police division respectively) to issue different orders (curfew orders and curfew restriction orders respectively), it was undeniable that the basis of issuance of any of those orders was in the interest of the attainment of peace, security and public order for good of the residents of the four counties and Kenya at large.
9. The curfew order was imposed in the four counties following a terrorist attack in Garissa, and the 2^nd respondent on the advice of the 1^st respondent deemed it fit to impose a curfew order on the four counties to forestall further loss of life, injury and destruction of property, the purpose and effect of the impugned provisions of the Act was in the circumstances justifiable.
10.  In as much as the impugned provisions donated power to the authorities to declare curfews the same was not open ended. The cabinet secretary on the advice of the Inspector-General of the National Police Service and the police officer in charge of the police in a county or a police officer in charge of a police division, as the case could be, were mandated to issue curfews where it was in the interest of public order. Additionally, section 8 of the Act stipulated a restriction on the number of hours of daylight that such curfew orders could affect. Similarly, section 9 of the Act unequivocally prohibited the issuance of a curfew restriction order for more than 28 days.
11. The powers donated under the impugned provisions were not unchecked. Section 9(4) provided that once a curfew restriction order was declared it should be immediately reported to the Commissioner of Police who had the authority to vary or rescind the same. The curfew orders and curfew restriction orders imposed under section 8 and 9 of the Act were, like a state of emergency, subject to judicial oversight and therefore were not devoid of checks and balances. There was nothing in the Constitution which prohibited the declaration of curfew orders or curfew restriction orders as envisaged under the Act. After the promulgation of the Constitution, the Security Laws (Amendment) Act, No. 19 of 2014 amended certain provisions of the Act but left intact the powers to declare curfews under sections 8 and 9.
12. Article 24 of the Constitution should be read together with article 25 of the Constitution which provided for the rights that could not be limited (non-derogable rights). While article 19(3)(c) of the Constitution recognized that the rights and fundamental freedoms in the bill of rights were only subject to the limitations contemplated in the Constitution, article 25 identified only four rights and fundamental freedoms that could not be limited. It followed that by article 24, the rest of the rights and fundamental freedoms under the bill of rights were enjoyed and guaranteed subject to strict terms of limitations.
13.  It had to be demonstrated that the limitation was imposed by legislation, and even then only when it was shown that the limitation was reasonable and justifiable in an open democratic society. Further it had to be based on dignity, equality and freedom, taking into consideration the nature of the right or fundamental freedom sought to be limited, the importance of the purpose of the limitation, its nature and extent, the enjoyment by others of their own rights as well as a consideration whether there were less restrictive means to achieve the purpose.
14. The limiting law had to be clear enough and devoid of ambiguity, for if a guaranteed constitutional right was to be limited, the limitation had to be specific enough for the citizen to know the nature and extent of the limitation, his or her rights and obligations under the right as limited and the law supplying the limitation had to be easily accessible to the citizen.
15. The impugned provisions constituted a limitation on certain fundamental rights. Even after establishing the existence of a law limiting any specific right and accepting that it was reasonable and justified, the means chosen to achieve the objective had to pass a proportionality test by considering [the parameters set out in article 24(1)(a) to (e) of the Constitution.
16. The curfew served to restrict movement between the hours of 6:30 pm to 6:00 am. Because of that limitation, certain other rights such as the right to attend prayers at the mosques were interfered with. Sections 8 and 9 of the Act provided that the curfew order or curfew restriction order would call on the affected persons to remain indoors or prohibit their entrance or presence in identified premises for the specified duration. As such, those orders had a limiting effect on some of the rights and freedoms of the residents of the four counties.
17. Sections 8 and 9 of the Act curtailed the right of freedom of movement and residence since the predominant element in the curfews involved constraint of the affected persons’ movement. The limitation of the freedom of movement would also have had an impact on the freedom of conscience, religion belief and opinion under article 32 of the Constitution. That was because depending on the specified period and hours in the curfew orders or curfew restriction orders issued under the Act, the consequence would be that a person’s right to gather with others for religious purposes would be hampered if the timing and date fell within a curfew. The limitation would not be only in respect of people who professed the Islamic faith but on every other religion which advocated for the communal gathering of its members at particular times.
18. The appellant did not demonstrate any cogent basis to support its allegation that the impugned provisions limited or infringed the right of freedom and security of a person under article 29 of the Constitution and right to life under article 26 of the Constitution.
19. Respect for human rights required the affirmation of self, not the denial of self. Equality therefore did not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirmed that difference should not be the basis for exclusion, marginalization, stigma and punishment. At best, it celebrated the validity that difference brought to any society. Mere differentiation or unequal treatment did not per se amount to discrimination prohibited under article 27 of the Constitution.
20. Sections 8 and 9 of the Act prescribed for curfews to be imposed against a class of persons which scenario envisaged different treatment of persons belonging to the class in question. Provisions or rules that created differences amongst affected persons did not of necessity give rise to the unequal or discriminatory treatment prohibited by article 27 of the Constitution, unless it could be demonstrated that such selection or differentiation was unreasonable or arbitrary and created for an illegitimate or surreptitious purpose.
21. Whether or not there had been a violation of the Constitution should be determined by applying a three stage enquiry to the circumstances of each case. The three stage enquiries were;

1. whether the differentiation created by the provision or rules had a rational or logical connection to a legitimate purpose; if so,
2. a violation of article 27 of the Constitution would not have been established. If not,
3. a second enquiry would be undertaken to determine whether the differentiation gave rise to unfair discrimination. If it does not,
4. there was no violation of the Constitution, but if the selection or differentiation gave rise to unfair discrimination, then the third enquiry would be necessary to determine whether it could be justified within the limitation provisions of the Constitution.

22. The differential treatment which would arise from implementation of sections 8 and 9 did not amount to discrimination prohibited by the Constitution. The appellant neither established nor was there anything to suggest that the impugned provisions were based on the prohibited grounds as set out in article 27(4) of the Constitution.
23. The impugned provisions were an acceptable limitation to the rights of the residents of the four counties and were not discriminatory as they applied to all the residents in the four counties. The objective of the Act was to attain the legitimate purpose of ensuring safety, peace and order and the attainment of national security in any given area of Kenya. Sections 8 and 9 of the Act furthered and were connected to the attainment of the objective of the Act. Considering the essence of sections 8 and 9 of the Act, not only were curfew orders and curfew restriction orders imposed thereunder proportionate means of achieving the Act’s objective of maintenance of public order but were also in line with the principles of national security stipulated under article 238(2) of the Constitution.
24. In circumstances where public order or safety had been or was at risk of being violated due to factors which included terror attacks or criminal insecurity, the limitation of the affected persons’ rights and freedoms within the context of sections 8 and 9 of the Act was justifiable, reasonable and necessary under article 24 of the Constitution to ensure the delicate balance of the rights of citizens.

Appeal dismissed; High Court’s finding that sections 8 and 9 of the Act were constitutional upheld; each party to bear their own costs.

Munene v Republic

Court of Appeal, at Nairobi October 19, 1994

Gachuhi, Cockar & Muli JJ A

Criminal Appeal No 1 of 1993

(Appeal from a judgment of the High Court of Kenya at Nairobi (Mr Justice JA Mango) dated 23rd December 1992, in Criminal Case No 7 of 1992)

Criminal law – murder – dying declaration – deceased making a dying declaration in mother tongue while police record in English – whether the difference in language affected the validity of the dying declaration.

Criminal Law – murder – whether charge of murder can be reduced to manslaughter in absence of provocation.

The appellant was tried and convicted of murder by the High Court.

He was accused of setting his wife on fire from which she sustained severe burns and from which she subsequently died.

Prior to the deceased’s death she made a dying statement in Kikuyu which was recorded by an inspector of police and it is this dying statement alongside other evidence in corroboration that the accused was convicted.

On appeal it was argued on his behalf that the fact that the dying statement was recorded in language other than the one in which it was given rendered its authenticity questionable. It was further submitted that the evidence adduced only supported a lesser charge of manslaughter.

Held:

1. It is clearly advisable to record dying statements in the language it is given but, in view of the corroboration that is available in this case the Court is satisfied that no miscarriage of justice has been caused.

2. The advocates plea for a reduction of conviction for the lesser offence of manslaughter is futile because of complete absence of provocation.

Appeal dismissed.

Cases

Kahiri v Republic [1993] KLR ........

Statutes

1. Penal Code (cap 63) sections 203, 204

2. Evidence Act (cap 80) section 33(a)

Antique Auctions Ltd v Pan African Auctions Ltd

Court of Appeal, at Nairobi September 29, 1993

Gachuhi & Cockar JJ A

Civil Appeal No 126 of 1987

Landlord and Tenant – covenant to repair by landlord – no liability for loss incurred prior to receipt of notice to repair.

Damages - special damages – meaning of- proof of special damages-whether special damages may be proved by evidence other than documentation.

The appellant, who was the respondent’s tenant, successfully sued the latter for special and general damages arising out of an alleged breach of covenant by the respondent landlord to maintain in good and tenantable condition its premises leased to the appellant. The appellant pleaded in its plaint that the respondent neglected to keep or maintain parts of the demised premises in good and tenantable condition thereby permitting rainwater from floors above to flood into the premises occasioning the appellant expense, inconvenience and damage to goods belonging to the appellants’ clients.

The trial magistrate, upon conclusion of the trial, awarded the appellant Kshs 60,185 as special damages and Kshs 14,815 as general damages.

The respondent appealed to the High Court against the judgment of the subordinate court but was successful only to the extent of the award of special damages which the High Court disallowed. The appellant consequently appealed to the Court of Appeal against the High Court’s decision.

In his grounds of appeal, the appellant faulted the High Court’s decision on five grounds which included submission that the High Court erred in suggesting special damages could only be accepted if corroborated and in applying high a burden of proof and not deciding on a balance of probabilities.

Held:

1. Where a landlord is guilty of breach of covenant to repair the demised premises, he is not liable for any damage suffered prior to the receipt by him of the notice to repair or to the time at which he has actual knowledge of the want of repair.

2. Proof of damages is by evidence and the court will decide each case on a balance of probability.

3. Special damages are such as the law will not infer from the nature of the act. They do not follow ordinary course. They are exceptional in their character and therefore, they must be claimed specifically and proved strictly.

4. The respondent had prior notice of the breach and was put on notice of the instant claim for failure to carry out proper repairs through correspondence before the suit was filed.

5. There was no evidence shown that the defendant disputed the claim specifically or demanded further and better particulars when the suit was filed until it filed its defence.

6. In order for the appellant to succeed, it was bound to plead and prove special damages on the pleadings. Once this was done, it was then the question of how the appellant led the evidence to prove its claim.

7. It is true that special damages must be proved, but it is not acceptable that damages can only be proved by supporting documentary evidence. It all depends on the credibility of the witness.

8. The appellant’s witness gave credible evidence and was believed by the trial Senior Resident Magistrate.

Appeal allowed.

Cases

1. Porter v Jones [1942] 2 All ER 570

2. Kampala City Council v Nabaye [1972] EA 446

3. Ouma v Nairobi City Council [1976] KLR 297

4. Hahn v Singh [1985] KLR 716; [1982-88] 1 KAR 738
5. Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582

Texts

1. Hailsham, Lord et al (1981) Halsbury’s Laws of England, London: Butterworths & Co 4th Edn Vol XXVII para 307

2. McGregor, H (1988) McGregor on Damages, London: Sweet and Maxwell 15th Edn pp 1, 21, 23 paras 1790, 1791

Statutes

Evidence Act (cap 80) section 12

Wangai v Njeru

Court of Appeal, at Nyeri July 29, 1993

Gachuhi, Cockar & Muli JJ A

Civil Appeal No 117 of 1990

(Appeal from an order of the High Court of Kenya at Nyeri (Abdulla J)

dated 28th September, 1989 in HCCC No 120 of 1983)

Arbitration - award – amendment of arbitration award – circumstances in which an arbitral award may be amended – order 45 rule 13 Civil Procedure Rules.

The respondent sought eviction of the appellant, her stepmother, from the suit land which was registered in the respondent’s name as an absolute proprietor. The land had been given to her by her late father as a gift. The appellant contested the suit arguing that the respondent being a married woman was forbidden by custom from inheriting the land.

By consent of the parties the matter was referred to a single arbitrator who rejected the prayer for eviction but recommended that the land should be divided equally between the parties. The appellant did not apply for the setting aside of the award but instead sought an amendment so that she could be awarded 8 acres instead of 5. The High Court dismissed the application as incompetent hence the appeal.

Held:

1. Under section 85 (1) of the Registered Land Act a proprietor may transfer land, lease or charge to any person including himself with or without consideration by an instrument in the prescribed form. A transfer by way of gift would be under this section.

2. The transfer as a gift was never challenged before the action for eviction was instituted and customary inheritance could not be a ground for amending the award.

3. An award may be modified or corrected under Order XLIV rule 13 of the Civil Procedure Rules where an award is on a matter not referred to arbitration, is imperfect in form or contains a clerical mistake or an error from accidental slip or omission.

4. The amendment being sought being not on any of the above grounds but on matters of hardship and contrary to customary law, the application was incompetent.

Appeal dismissed.

Cases

No cases referred.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) or order XLII rule 1(b); order XLIV

2. Registered Land Act (cap 300) sections 27, 85(1)