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Supreme CourtDismissedPetition 5 (E007) of 2021

Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission (Interested Party)

Supreme Court of Kenya
23 June 2023
8,193 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Curfew orders are constitutional and do not require parliamentary approval like a state of emergency.

What this practically means

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The Supreme Court ruled that curfew orders under the Public Order Act are different from a state of emergency. A curfew applies to a specific area and does not need Parliament's approval. The court found that limiting rights like movement and business hours was justified after the Garissa University attack, which killed 148 people. The curfew was reasonable, temporary, and aimed at protecting the right to life.

Executive summary

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The appellant challenged the constitutionality of sections 8 and 9 of the Public Order Act, which empower the Cabinet Secretary for Interior and police officers to issue curfew orders and curfew restriction orders. The challenge arose from a curfew imposed in Wajir, Garissa, Mandera, and Tana River Counties following the Garissa University terrorist attack in April 2015, which killed 148 people. The appellant argued that the provisions were unconstitutional vis-à-vis article 58 of the Constitution (state of emergency) and that they violated several fundamental rights including the right to life, equality, liberty, freedom of religion, and freedom of movement. Both the High Court and the Court of Appeal dismissed the appellant's case, finding the provisions constitutional and the limitation of rights justifiable. The Supreme Court dismissed the appeal, holding that sections 8 and 9 of the Public Order Act are constitutional. The Court distinguished between a state of emergency under article 58, which affects the entire State and requires parliamentary approval, and curfew orders, which are limited to a particular area and do not require such approval. The Court found that the provisions provide for the duration of curfews, publication, and the possibility of judicial challenge. On the limitation of rights, the Court applied the test under article 24 of the Constitution and the Siracusa Principles, finding that the curfew was necessary to preserve the right to life and maintain public order following the terrorist attack. The limitation on movement, business hours, and religious practices was reasonable and justifiable in the circumstances. The Court ordered each party to bear its own costs and directed that the security for costs be refunded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether sections 8 and 9 of the Public Order Act are unconstitutional vis a vis article 58 of the Constitution.
  2. 2.Whether the imposition of curfew in Wajir, Garissa, Mandera, and Tana River violated the rights enshrined under articles 26, 27, 29, 32 and 39 of the Constitution.

Key legal issues

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01

Whether sections 8 and 9 of the Public Order Act are unconstitutional vis a vis article 58 of the Constitution

Holding

Sections 8 and 9 of the Public Order Act are constitutional and not inconsistent with article 58 of the Constitution.

Reasoning

The court distinguished between a state of emergency under article 58, which affects the entire State and requires parliamentary approval, and curfew orders under sections 8 and 9, which are limited to a particular area and do not require such approval. The court found that the provisions provide for the duration of curfews, publication, and the possibility of judicial challenge, and thus meet constitutional threshold. The appellant's argument that the provisions give sweeping powers without checks and balances was rejected.

02

Whether the imposition of curfew orders violated the rights enshrined under articles 26, 27, 29, 32 and 39 of the Constitution

Holding

The limitation of rights was justifiable and reasonable in the circumstances, and there was no violation of the appellant's rights.

Reasoning

The court applied the limitation test under article 24 of the Constitution and the Siracusa Principles. It found that the curfew was imposed following a terrorist attack that killed 148 people, and the limitation on movement, business hours, and religious practices was necessary to preserve the right to life and maintain public order. The curfew applied to all residents and did not discriminate. The hours (6.30pm to 6.00am) were reasonable, and the duration was limited.

Legal principles established

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  • A curfew order is limited to a specific area and does not require parliamentary approval.
  • A state of emergency affects the entire country and requires parliamentary oversight.
  • Limiting fundamental rights during a curfew is justifiable if public safety is at risk.
  • The Public Order Act's curfew provisions meet constitutional standards for checks and balances.
  • Rights can be limited if the restriction is reasonable, necessary, and proportional to the threat.

Court orders

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  1. 1.The appeal is hereby dismissed
  2. 2.Each party shall bear its own costs
  3. 3.The sum of Kshs 7,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No 6 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that sections 8 and 9 of the Public Order Act are unconstitutional

The court found the provisions constitutional and meeting the intent and purpose of the Act.

Declaration that the curfew imposed on the four counties was unconstitutional and violated fundamental rights

The court found the limitations were justifiable and reasonable in the circumstances.

Costs

Each party shall bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal is hereby dismissed
p. 20 Final orders
Each party shall bear its own costs
p. 20 Costs order
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.
p. 17 Constitutionality of sections 8 and 9 of the Public Order Act
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.
p. 20 Justifiability of limitation of rights

Key timeline

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2015-04-02
Garissa University terrorist attack kills 148 people.
2015-04
Curfew imposed in Wajir, Garissa, Mandera, and Tana River Counties.
2015
Abdikadir Sheikh Mohamed files petition challenging curfew's constitutionality.
2015
High Court dismisses the petition.
2015
Court of Appeal affirms High Court decision.
2015
Supreme Court hears consolidated appeals.
2015
Supreme Court dismisses appeal, upholds curfew orders as constitutional.

Practical implications

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For lawyers

Distinguish curfew from emergency

When advising clients on public order measures, clearly differentiate between curfew orders under sections 8-9 of the Public Order Act and a state of emergency under Article 58. Curfews require no parliamentary approval and are limited to specific areas. Use this precedent to challenge or defend curfew orders by focusing on proportionality and necessity under Article 24.

For businesses

Plan for curfew disruptions

If your business operates in areas prone to security threats, prepare contingency plans for curfews. The court upheld curfews as reasonable limitations on business hours and movement. Update your risk management policies to include temporary restrictions, and ensure you can quickly adapt operations to comply with curfew orders without violating employee rights.

For individuals

Know your curfew rights

You can challenge a curfew order in court if it is unreasonable or discriminatory. The court confirmed that curfews must be limited in duration, published, and subject to judicial review. If your rights are restricted, document how the curfew affects you and seek legal advice to test whether the limitation is justifiable under the Constitution.

Frequently asked questions

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Is a curfew in Kenya the same as a state of emergency?+

No. A curfew applies to a specific area and does not need Parliament's approval. A state of emergency affects the whole country and requires parliamentary oversight. The Supreme Court confirmed this distinction in Abdikadir Sheikh Mohamed v Cabinet Secretary.

Can the government limit my rights during a curfew in Kenya?+

Yes, but only if the limitation is reasonable and necessary for public safety. The court found that after the Garissa attack, restricting movement and business hours was justified to protect the right to life. The curfew must be temporary and non-discriminatory.

What law allows curfews in Kenya?+

Sections 8 and 9 of the Public Order Act allow the Cabinet Secretary for Interior and police officers to issue curfew orders. The Supreme Court upheld these sections as constitutional, meaning they are valid and enforceable.

Can I challenge a curfew order in Kenya?+

Yes. The court said curfew orders can be challenged in court. You can argue that the curfew is unreasonable, discriminatory, or not necessary. The law requires curfews to be published and limited in duration, giving you grounds to seek judicial review.

Cite this brief

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Cite this brief

Caselaw, "Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission (Interested Party)", Case Analysis (2023). Petition 5 (E007) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/51/eng@2023-06-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.