Nairobi News

NewsWhat's Hot

AG moves to court to reverse ruling on Security Laws

Attorney General Prof Githu Muigai has filed an appeal against the suspension of eight clauses of the controversial Security Laws (Amendment) Act.

In the appeal, Prof Muigai argues that he has 14 grounds upon which the January 2 ruling by Justice George Odunga can be reversed.

The AG says the judge erred in law in failing to find that a proper and wholistic interpretation of Article 23 of the constitution does not envisage conservatory orders in respect of legislation but that the only redress the court may issue is to declare if merited, the invalidity of any law as a final determination in proceedings.  The “urgent” appeal was filed on Tuesday.

Prof Muigai adds that the court had no jurisdiction to suspend legislation at an interlocutory stage and that there was not sufficient material evidence on the record to warrant the granting of the prayers of stay or suspension of the law.

“Mere apprehension  by the petitioners was insufficient to warrant the granting of the prayers for suspension sought,” says Prof Muigai.

CONSTITUTIONALITY

“The judge erred in law and in fact in suspending parts of the Act legislation without a rebuttal of its constitutionality.”

Justice Odunga suspended eight clauses of the Security Laws Act, which was passed last December during an acrimonious session in the National Assembly. The case was filed by the opposition side Cord and is set to be heard by a bench constituted by Chief Justice Willy Mutunga.

But according to the AG, Justice Odunga erred in law in failing to hold that in the circumstances of the case the operation of the law could only be stayed or suspended after sufficient proof at the hearing of the substantive petition.

He also faults the judge for failing to uphold the doctrine of presumption of Constitutionality of the law till the same was proved to be unconstitutional.

“The Learned Judge of the High Court erred in law and in fact and he contradicted himself in that whilst the challenge to the entire Act before him was premised on an allegedly flawed and unconstitutional process, he consequently suspended only certain sections of the same Act,” Githu said.