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Court of AppealDismissedCivil Appeal (Court of Appeal, Nairobi)· [2016] KECA 418 (KLR)

Attorney General & another v Ruwa & 2 others (Civil Appeal 275 of 2012) [2016] KECA 418 (KLR)

Court of Appeal of Kenya
8 July 2016
DMDaniel MusingaWilliam OukoWilliam OukoPKPatrick KiageKMKathurima M'inotiJMJamilla Mohammed
6,551 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the government cannot ban an organisation in the name of national security without solid evidence justifying the ban under the Constitution.

What this practically means

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Executive summary

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This was an appeal by the Attorney General against a High Court decision (Miscellaneous Application No. 468 of 2010, Mombasa) that had declared unconstitutional the proscription of the Mombasa Republican Council (MRC) by Gazette Notice No. 12585 of 18th October 2010 under section 22 of the Prevention of Organized Crimes Act (POCA). The High Court had held that the State failed to justify the ban under Article 24 and had directed that MRC could organise and register as a political party. Musinga JA, writing for a five-judge bench (Ouko, Kiage, M'inoti and Mohammed JJ.A concurring), dismissed the appeal. First, he rejected the appellant's reliance on CCSU: national security decisions are not immune from judicial scrutiny under the 2010 Constitution, Article 238(2) subjecting national security to constitutional authority and the rule of law. Second, the State bore the burden under Article 24 of justifying the limitation; the affidavits of Kimemia and Iringo, resting largely on intelligence and press reports, failed to establish that MRC was engaged in organised criminal activity or linked to RRC, so the ban unjustifiably curtailed the rights of assembly, political participation and fair administrative action of over 32,000 members. Third, POCA commenced on 23rd September 2010, after the Constitution came into force, so Article 24 properly applied. Fourth, on secession, the court held that although the Constitution does not permit unilateral secession, advocacy of secession by peaceful, constitutional means is protected; a constitutional amendment pathway exists under Articles 255, 256 and 257, and the Government may not proscribe an organisation merely for pursuing that agenda. The appeal was dismissed with each party bearing its own costs. The judgment binds lower courts to scrutinise national-security-based limitations of rights under Article 24.

Key legal issues

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01

Justiciability of national security decisions

Holding

The position in CCSU that national security assessments are for the Government and not the courts is rejected under the Kenyan Constitution; courts may interrogate executive action taken in the name of national security.

Reasoning

Article 238(2) subjects national security to the authority of the Constitution and Parliament and requires compliance with the rule of law, democracy, human rights and fundamental freedoms. Article 2 entrenches constitutional supremacy, and the Judiciary is subject only to the Constitution. The House of Lords reasoning in CCSU is therefore inconsistent with the Kenyan constitutional dispensation and was rejected.

p. 9
02

Whether the minister acted on reasonable grounds under section 22 of POCA

Holding

The State did not sufficiently demonstrate that MRC was engaging in organised criminal activity; the affidavits relied on press reports and unproven allegations, and no evidence linked MRC to RRC.

Reasoning

Section 22(1) requires reasonable grounds that the group is engaging in organised criminal activity before proscription. The deponents relied on intelligence reports, press reports and post-ban incidents; arrested persons were acquitted; and no evidence connected RRC to MRC. The proscription therefore denied over 32,000 members their rights under Articles 37, 38 and 47 without sufficient justification.

p. 7
03

Applicability of Article 24 to POCA

Holding

POCA, though assented to before the Constitution, commenced after 27th August 2010; it must be interpreted in light of Article 24, and the trial court rightly applied the limitation clause.

Reasoning

The Constitution came into operation on 27th August 2010 while POCA commenced on 23rd September 2010. Since POCA was in force after the Constitution, the limitation requirements of Article 24 govern both the law and the manner of its application. The State bears the burden under Article 24(3) of justifying the restriction.

p. 9
04

Constitutionality of secession advocacy

Holding

It is not unconstitutional to advocate secession peacefully and by constitutional means; a constitutional amendment route exists under Articles 255, 256 and 257, but unlawful means of pursuing the agenda remain punishable.

Reasoning

International law neither permits nor prohibits secession. The Constitution defines Kenya's territory but permits its amendment by referendum under Article 255 for matters including the territory of Kenya and sovereignty of the people. The right to campaign for a cause is protected by Article 38 and freedom of expression by Article 33, subject to limits such as incitement and hate speech. The Government cannot proscribe an organisation merely for pursuing secession peacefully.

p. 12

Legal principles established

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  • Executive or administrative decisions taken in the name of national security are justiciable and subject to judicial scrutiny under the 2010 Constitution; national security is subject to the authority of the Constitution and Parliament.
  • The State bears the burden of justifying any limitation of a Bill of Rights right under Article 24, and both the limiting law and the manner of its application must satisfy Article 24.
  • A statute that commenced after the Constitution of Kenya, 2010 came into force must be interpreted in light of Article 24; the Constitution does not apply retrospectively where the statute post-dates it in operation.
  • Advocating secession is not per se unconstitutional; the Constitution contemplates amendment of the territory of Kenya through Articles 255, 256 and 257, though rights must be pursued lawfully.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 37
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 33
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 238(2)
  • Constitution of Kenya, 2010Article 2
  • Constitution of Kenya, 2010Articles 4 and 5
  • Constitution of Kenya, 2010Articles 255, 256 and 257
  • Constitution of Kenya, 2010Article 19(3)(a)
  • Constitution of Kenya, 2010Articles 2(5) and 2(6)
  • Prevention of Organized Crimes Act, No. 6 of 2010Section 22
  • Prevention of Organized Crimes Act, No. 6 of 2010Section 2
  • Prevention of Organized Crimes Act, No. 6 of 2010Section 3
  • Prevention of Organized Crimes Act, No. 6 of 2010Section 11(1)

Cases cited (4)

  • The Matter Of The Interim Independent Electoral & Boundaries Commission
    [2011] eKLR
  • Council Of Civil Service Unions (C.C.S.U.) v Minister For The Civil Service
    [1985] 1 AC 374
  • Samuel Manamela & Another v The Director General Of Justice
    CCT 25/99
  • Re Secession Of Quebec
    [1998] 2 S. C. R. 217
On appeal from
High Court of Kenya at Mombasa
Miscellaneous Application No. 468 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (constitutional petition); the judgment does not state a specific constitutional provision as the basis of appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General & another v Ruwa & 2 others (Civil Appeal 275 of 2012) [2016] KECA 418 (KLR)", Case Analysis (2016). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/418/eng@2016-07-08

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