Whether sections 8 and 9 of the public order are unconstitutional?
32.The second issue for our determination is whether sections 8 and 9 of the Public Order Act is constitutional vis a vis article 58 of Constitution. We shall reproduce the provisions and analyse constitutionality thereof.
33.Section 9 of the Public Order Act provides for curfew restriction orders as follows:
34.Article 58 of Constitution provides as follows on the declaration of a state of emergency:
2.A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only—a.prospectively; andb.for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.
3.The National Assembly may extend a declaration of a state of emergency—a.by resolution adopted—i.following a public debate in the National Assembly; andii.by the majorities specified in clause (4); andb.for not longer than two months at a time.
4.The first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.
5.The Supreme Court may decide on the validity of—a.a declaration of a state of emergency;b.any extension of a declaration of a state of emergency; andc.any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
6.Any legislation enacted in consequence of a declaration of a state of emergency—a.may limit a right or fundamental freedom in the Bill of Rights only to the extent that;i.the limitation is strictly required by the emergency; andii.the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency; andb.shall not take effect until it is published in the gazette.
7.A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorize the indemnification of the State, or of any person, in respect of any unlawful act or omission”.
35.Having set out the legislative provisions on curfew orders and curfew restriction orders under contention as against constitutional provisions on state of emergency, we now turn to the analysis of constitutionality of the legislative provisions.
36.We have previously pronounced ourselves on the test on determining constitutionality of legislative provisions. In the case of Law Society of Kenya v Attorney General & another petition No 4 of 2019 eKLR this court held as follows at paragraph 36:
37.This court further enumerated on the applicable presumption and onus dischargeable as follows at paragraph 37:
38.Additionally, in the same paragraph, the Supreme Court enumerated the principle that, “the true essence of a statutory provision as well as its effect and purpose must be considered.”
41.The appellant contends that the provisions of section 8 and 9 of the Public Order Act are unconstitutional as they give sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of Constitution. It is its case that the provisions do not provide timelines on duration of curfews and further that the provisions infringe on an array of human rights. The appellant also contends that the provisions are archaic and contrasted the provisions to the colonial statutes on issuance of passes which were written permits granted by an authority under inter alia the Native Passes Regulations 1900.
42.It is the respondents' case that the impugned provisions are not unconstitutional as they meet the objective of the Public Order Act which is to attain the legitimate purpose of ensuring safety, peace, and order at the attainment of national security in a given area of the country. Further that sections 8 and 9 of the Act presuppose a state of security, peace, and stability that is free from criminal activities and violence.
44.In analyzing constitutionality of sections 8 and 9 of the Public Order Act, we shall begin by considering the purpose of the Act. The long title of the Act provides that the objective of the Statute is to make provision for the maintenance of public order and for purposes connected therewith. With reference to curfew orders, the Cabinet Secretary responsible for Internal Security is mandated to issue the order which is premised on advice of the Inspector General of Police. The order is issued in the interests of maintaining public order.
45.In the circumstances of this case, the curfew orders in dispute were issued following a heinous terrorist attack in Garissa and it was necessary in the circumstances to forestall any other attacks as well as maintain public order while investigations relating to the attack were conducted whilst maintaining law and order in the affected county as well as the neighboring counties. Therefore, the 2nd respondent legitimately issued the curfew order which was also a precautionary measure to avert any further potential risk upon the lives of the residents in the four (4) counties.
47.Further, there was need to maintain national security considering that the nature of terrorism translates across the victim country’s borders. Article 238 of Constitution provides that the principles of national security are that it is subject to the authority of Constitution and Parliament, it shall be pursued in compliance with the law and utmost respect for the rule of law, democracy and human rights and fundamental freedoms and that national security organs shall respect the diverse culture of the communities within Kenya.
48.Sections 8 and 9 of the Public Order Act provide for the duration of hours to remain indoors and which applies to every member of any class except with a written permit. Additionally, curfew restriction orders are issued by the police in charge of a county or division restricting persons from entering, being or remaining in any premises. The Black’s Law Dictionary defines a curfew as ‘a regulation that forbids people from being outdoors or in vehicles during certain hours.’ Although the statutory provisions do not state the hours for the curfew operation, the proviso in section 8(3) caters to the limitation of hours to a curfew as it prohibits the operation of a curfew order for more than ten (10) hours consecutive hours of daylight for three (3) consecutive days or for less consecutive hours for more than seven (7) days. Further, a curfew restriction order should not exceed twenty-eight (28) days. We therefore find that the law does provide for the operation hours of a curfew which is not excessive but rational to meet the objective of the issuance of the orders.
49.On publication of the orders, sections 8 and 9 of the Public Order Act provides that the authority making the order shall in a manner it may think sufficient notify all persons of the day the curfew shall come into force and its duration. We, therefore, find that although the proviso does not state how the publication should be issued, the 2nd respondent has the onus to ensure that the publication is widespread and that all affected persons are informed on the issuance of the curfew.
50.The appellant contends that the provisions of sections 8 and 9 of the Public Order Act should be considered vis a vis article 58 of Constitution on a declaration of a state of emergency. A reading of article 58 of Constitution provides that a state of emergency is declared in the limited circumstances where the State is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency. The declaration is for an initial period of fourteen (14) days and any subsequent extension is subject to the approval by National Assembly and its validity or legislation enacted pursuant to the declaration can be challenged in the Supreme Court.
51.Constitution anticipates that a declaration of a state of emergency is likely to limit the enjoyment of rights and freedoms and provides that the limitation should strictly be required by the emergency and be consistent with the Republic’s obligation under international law applicable to a state of emergency.
52.Therefore, in contrast to the legislative provisions on curfew orders and curfew restriction orders, it is apparent that a declaration of a state of emergency affects the entire State. Consequently, the declaration must be subjected to oversight by Parliament and any legal challenge arising thereof be resolved by the courts and in this instance, the jurisdiction is limited to the Supreme Court. On the other hand, curfew orders and curfew restriction orders are limited to a particular area and therefore will not require Parliamentary approval. However, any legal challenge arising from the declaration of a curfew can be adjudicated upon in the courts. The duration of a curfew restriction order shall not exceed a period of twenty-eight (28) days which we opine is a reasonable period upon recommendation by the authority making it.
53.Consequently, gleaning on the considerations above we find that the appellant’s arguments fail and hold that the provisions of sections 8 and 9 of the Public Order Act attain constitutional threshold as well as meet the intent and purpose of the Act.(ii)Whether the imposition of the curfew orders violated the rights enshrined under articles 26, 27, 29, and 39 of Constitution and whether the limitation was justifiable?
54.The appellant contends that the curtailing of movement of people had the effect of depriving people of their livelihood contrary to article 26 of Constitution on the right to life, and that the voluntary limitation violated the right to liberty under article 29 of Constitution, that sections 8 and 9 of the Public Order Act provides that the curfew can be imposed on members of a specific class which purportedly causes segregation thereby violating the right to equality and freedom from discrimination contrary to article 27 of Constitution; that persons in the areas that the impugned curfew orders were declared are majority Muslim faithful who could not conduct night prayers during the holy month of Ramadhan thereby curtailing the freedom of religion contrary to article 32 of Constitution, and that the movement of persons where the curfew and restriction orders were imposed was in contravention of the right of movement under article 39 of Constitution.
55.The respondents in opposition urged that there was no infringement of rights but the orders merely limited the enjoyment of certain rights. It is their case that the right of movement was limited to ensure safety and security and maintain public order as many lives had been lost during the terrorist attack. Additionally, that the orders applied to all residents and did not discriminate against the Muslim residents right to freedom of religion.
56.We now turn to the principles applicable. With reference to international law, some human rights treaties include special provisions allowing for derogations from particular rights in times of war or other emergencies threatening the life of the nation.
59.The derogation clauses are included because, during exceptional times, it can be crucial to curtail rights in order to preserve their long-term existence. This is important because human rights themselves come under threat in situations where there is no public order. In addition, the measures must be of an exceptional and temporary nature and only in a situation that amounts to a public emergency threatening the life of a nation.
60.In this matter, it is imperative to note that the curfew orders and restriction orders were issued as a result of an unfortunate terrorist attack. Terrorism is classified as an international threat and its suppression involves a combined multi-national and multi-agency approach. Internationally, Kenya is core in the fight against terrorism having been a victim of the heinous attacks on occasions we do not wish to recollect.
61.The Siracusa Principles drafted in 1958 provide for the limitation and derogation principles in the International Covenant on Civil and Political Rights - ICCPR. The principles define which public emergencies fall under article 4 of the ICCPR and provide for example, that public health may be invoked to trigger emergency provisions for the purpose of allowing ‘a State to take measures dealing with a serious threat to the health of the population or individual members of the population.’ These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.
62.The Siracusa Principles speci?cally state that restrictions should, at a minimum, be:i.“provided for and carried out in accordance with the law;ii.directed toward a legitimate objective of general interest;iii.strictly necessary in a democratic society to achieve the objective;iv.the least intrusive and restrictive available to reach the objective;v.based on scienti?c evidence and neither arbitrary nor discriminatory in application; andvi)of limited duration, respectful of human dignity, and subject to review.”
63.In relation to the ICCPR, the Siracusa Principles specify that limitation clauses based on the covenant provisions can only be invoked if they are necessary, based on one of the grounds justifying limitations recognized by the covenant, responding to a pressing social need, pursuing a legitimate aim, are necessary in a democratic society, and proportional to the nature of the threat.
64.During the Covid 19 pandemic the Human Rights Committee in its ‘statement on derogations from the covenant in connection with the Covid-19 pandemic’, specifies that the pandemic has put an onus on member states to take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and that such measures may result in restrictions on the enjoyment of individual rights guaranteed by the covenant
65.Article 24 of Constitution provides as follows on the limitation of rights and fundamental freedoms; that
67.Chaskalson P, of Constitutional Court of South Africa held as follows on the limitation test in the case of S v Makwanyane and another  ZACC 3 at paragraph 104:
68.Turning to the contention by the appellant, on the alleged infringement on the right of movement, we opine that the very nature of curfew orders is to limit movement of people so as to maintain security, law, and order. The operating hours of the curfew were between 6.30 pm and 6.00 am. These hours are reasonable and it was justifiable for this right to be limited for the duration of the curfew. On the alleged infringement of the right of life whose enjoyment the appellant urged infringed on the rights of the good people of the Wajir, Mandera, Garissa and Tana River counties to livelihood as the curfew orders restricted persons from being in their business premises, we find as follows. In the circumstances, the need to preserve the right to life, after over a hundred lives were lost in the terrorist attack, outweighed the limitation on the restriction of business trading hours. In any event, during the curfew period, the residents were notified of the curfew and were therefore obliged to adjust their business trading hours.
69.On the alleged discrimination, segregation and infringement of the freedom of religion, the appellant urged that sections 8 and 9 of the Public Order Act speaks to the issuance of curfew orders against a class of persons. A reading of the provision shows that the curfew orders apply to “every member of any class of persons specified in the curfew order” and that the exception is only granted to persons who have a written permit from the authority. In this instance, the curfew order applied to all the residents of the four counties and did not segregate any class of persons as alleged. It was unfortunate that the curfew run during the month of Ramadhan thereby restricting the Muslims from attending night prayers. However, the limitation of the freedom of religion was justifiable in the circumstances.
70.Consequently, relying on the provisions of Constitution, International Law, and the principles on the reasonable and justifiable test and taking into account all factors attendant to this cause, we find that the limitations were justifiable and reasonable in the circumstances and that there was no violation of the enjoyment of human rights as alleged by the appellant.