REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ)

PETITION NO. 5 (E007) OF 2021

―BETWEEN―
HAKI NA SHERIA INITIATIVE ….….……………..………...APPELLANT
-VERSUS-
THE INSPECTOR OF POLICE…………………………….1ST RESPONDENT
THE CABINET SECRETARY,
INTERNAL SECURITY………………………………..…..2ND RESPONDENT
THE ATTORNEY GENERAL………………….………….3RD RESPONDENT
AND
KENYA NATIONAL HUMAN RIGHTS &
EQUALITY COMMISSION……………………..……INTERESTED PARTY

(Being an appeal from the Judgement and Order of the Court of Appeal at
Nairobi (W. Karanja, Sichale & J. Mohammed JJ.A) dated 19th June 2020
at Nairobi in Civil Appeal No. 261 of 2018 )

Representation:
Mr. Jibril Noor & Ms. Sumayyah Mukku for the Petitioner
(Bashir, Noor & Co Advocates)
State Counsel Ms. Wamuyu for the Respondent
(Office of the Hon. Attorney General)

JUDGMENT OF THE COURT

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Petition No. 5 (EOO7) of 2021
A. INTRODUCTION

[1] This appeal challenges the constitutionality of the provisions of Section 8

and 9 of the Public Order Act which provides for the mandate of the Cabinet
Secretary of Interior and a police officer in charge of a county or division to issue
curfew orders and curfew restriction orders respectively.

[2] The appellant also submits that as a result of the said curfew orders specific
constitutional rights and freedoms of the citizens were infringed or violated
including the right to life under Article 26; the Right to equality and freedom
from discrimination under Article 27; the right to liberty under Article 29;
freedom of conscience, religion, belief under Article 32 and the right to
movement under Article 39 of the Constitution.

[3] The appellant instituted this case before the High Court Constitutional &
Human Rights division challenging the directive issued by the then Cabinet
Secretary for Internal Security imposing a curfew in Wajir, Garissa, Mandera
and Tana River Counties from 6.30pm to 6.30 am between the months of April
2015 to June 2015. The curfew orders and restrictions were imposed following
a heinous terrorist attack on 2nd April 2015 at Garissa University where at least
148 innocent Kenyans were killed and numerous others injured.

[4] Both the High Court and the Court of Appeal dismissed the appellant’s case
and made a finding that Section 8 and 9 of the Public Order Act was not
unconstitutional and that the alleged limitation of human rights and freedoms
within Section 8 and 9 of the Public Order Act is justifiable, reasonable and
necessary under Article 24 of the Constitution.

B. BACKGROUND

i. Proceedings in the High Court

[5] The appellant filed a constitutional petition before the Garissa High
Court Petition No. 6 of 2015 which challenged the constitutionality of
Sections 8 and 9 of the Public Order Act, on which the curfew was predicated.
It also contended that the continued enforcement of the curfew severally
curtailed the residents’ rights of movement and worship. The effect of the

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Petition No. 5 (EOO7) of 2021
curfew reduced the number of hours in the day leading to a serious negative
impact on the socio-economic activities and livelihoods of the people living in
these counties since economic activities in these areas are particularly active
during the night due to the severe high temperatures, these activities include
but not limited to retail trading, video shows, travel, and social gatherings.

[6] The appellant prayed for the High court to grant inter alia the following
orders; An order of injunction restraining the respondents, whether by
themselves, agents, police, military officers, or other assigns, from continuing
to enforce the orders of curfew affecting Garissa, Wajir, Mandera, and Tana
River county residents and interfering with the free movement of the residents
of the aforementioned counties, an order lifting the curfew and a declaration
that that curfew imposed on the aforementioned counties is illegal,
unconstitutional, and null and void.

[7] The appellant also prayed for a declaration that Sections 8 and 9 of the
Public Order Act are unconstitutional and void, that the 1st respondent acted
without authority to impose the curfew on the counties, that the citizens’ right
to religion especially during the month of Ramadhan be safeguarded and an
Order for the payment of damages to communities and residents to be assessed.

[8] The High Court identified four key issues for determination: whether the
petition can be allowed even though the respondent and the interested party did
not file replying affidavits; whether Sections 8 and 9 of the Public Order Act are
unconstitutional; whether the curfew imposed on the residents of Garissa,
Wajir, Mandera, and Tana River Counties infringed on their fundamental rights
and was unconstitutional, null and void, and whether the prayers sought can be
granted.

[9] On 14th March 2017, the High Court (Dulu J) dismissed the Petition with no
order as to costs and made the following findings. On the issue of failure by
respondents and the interested party to file replying affidavits to the petition,
the learned Judge found that the points in dispute were legal rather than factual
therefore, a replying affidavit was not necessary as it is only required when
controverting facts.

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Petition No. 5 (EOO7) of 2021
[10] On the question of the unconstitutionality of Sections 8 and 9 of the Public
Order Act, the learned Judge observed that powers to declare a state of
emergency are different from those of the imposition of a curfew or curfew
restriction orders. The presidential powers to declare a state of emergency
under Article 58 of the Constitution require the national assembly, however,
there was no such requirement for curfew orders and curfew restriction orders.
Therefore, the powers conferred on the President to declare a state of
emergency differ from the powers bestowed on the Cabinet Secretary to declare
curfew orders and curfew restrictions. Ultimately, it found that Sections 8 and
9 of the Public Order Act were not unconstitutional.

[11] On the violation of the fundamental rights and freedoms, the learned Judge
while admitting that certain fundamental rights had been limited by the
imposition of the curfew due to the prevalence of insecurity, held that the curfew
order was justified at the time it was imposed and not unconstitutional.

ii. Proceedings in the Court of Appeal

[12] The appellant being aggrieved by the judgment delivered by the High Court
lodged an appeal raising the following grounds of appeal, that the learned judge
erred in: holding that Sections 8 and 9 of the Public Order Act vis a vis Article
58 of the Constitution are constitutional; failing to consider the effect or
consequence of Sections 8 and 9 of the Public Order Act; failing to consider its
submissions; and for holding that the appellant had not pointed out any specific
Article of the Constitution which was violated.

[13] The Court of Appeal distilled four issues for determination as follows.
Whether the appellant set out his case precisely to the required standard;
whether the learned Judge considered the appellant’s submissions; whether
Sections 8 & 9 of the Act infringe on human rights and freedoms protected by
the Constitution and are therefore unconstitutional; and whether Sections 8 &
9 of the Act are acceptable limitations of the rights and freedoms as envisioned
under Article 24 of the Constitution.

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Petition No. 5 (EOO7) of 2021
[14] The Court of Appeal dismissed the appeal with no order as to costs and
made the following findings. On the question of whether the appellant set out
his case precisely to the required standard, the superior court found that the
appellant had laid out the purported infringed constitutional provisions, and its
submissions were considered.

[15] On the legality and constitutionality of Sections 8 and 9 of the Public Order
Act, the court held that the curfew order imposed in the four counties forestalled
further loss of life, injury, and destruction of property and the purpose and
effect of the impugned provisions were in the circumstances justifiable. The
court further held that the provision is not open-ended in so far as it donates
power to authorities to declare curfews. The court found that the authorities are
mandated to issue curfews where it is in the interest of public order. It was also
held that the daylight hours are stipulated in Section 8 while Section 9
unequivocally prohibits the issuance of a curfew restriction order for more than
28 days. Furthermore, the court found that the Commissioner of Police also has
the authority to vary or rescind the curfew orders. Ultimately, it found Sections
8 and 9 of the Public Order Act constitutional.

[16] On whether Sections 8 & 9 of the Act are acceptable limitations of the
rights and freedoms as envisioned under Article 24 of the Constitution, the
Court of Appeal found that where public order or safety has been or is at risk of
being violated due to factors which include terror attacks or criminal insecurity,
the limitation of the affected person's rights and freedoms within the context of
Sections 8 and 9 of the Act is justifiable, reasonable and necessary under Article
24 of the Constitution to ensure the delicate balance of the rights of the citizens.

iii. Proceedings in the Supreme Court

[17] Aggrieved by the Court of Appeal’s decision, the appellant has now filed
the instant petition. The condensed grounds of appeal are that: the learned
judges erred holding that Sections 8 and 9 of the Public Order Act are
constitutional vis a vis Article 58 of the Constitution; the checks under the
Public Order Act are constitutional and proper and yet the powers are not

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Petition No. 5 (EOO7) of 2021
subjected to Parliamentary or judicial control like powers of the President under
Article 58.

[18] The appellants urged the learned judges erred in holding that Sections 8
and 9 of the Public Order Act are constitutional vis a vis Articles 39, 28, 29, 32,
26, 37, and 43 of the Constitution and International human rights instruments
and that the limitations of Human Rights by the impugned Sections 8 and 9 of
the Public Order Act are acceptable and justifiable in the circumstances. The
appellants also argued that the learned judges failed to consider Article 23 of
the constitution on the justiciability of a threat to human rights vis a vis actual
violation. Lastly, that the learned judges made a contradictory finding that
sections 8 and 9 of the Public Order Act are legal, checked through judicial
oversight but depriving any party the basis to challenge the powers under the
impugned provisions by holding that the provisions are constitutional.

[19] The reliefs sought are for this Court to: allow the Petition, set aside the
Court of Appeal judgment and order, and declare sections 8 and 9 of the Public
Order Act unconstitutional.

D. PARTIES’ SUBMISSIONS

i) Appellant’s Submissions

[20] The appellant submits that sections 8 and 9 of the Public Order Act give
sweeping powers to the Cabinet Secretary and the police without checks and
balances and lack parliamentary and judicial oversight contrary to Articles 58
and 95 of the Constitution. Furthermore, that the provision does not provide
timelines on the duration of curfews, contrary to Article 58, which stipulates the
duration of a state of emergency. The appellant also submits that the impugned
provisions are too intrusive on the Bill of Rights.

[21] The appellant urged that sections 8 and 9 of the Public Order Act is archaic,
draconian and unreasonable as it is incompatible with Kenya’s modern and
progressive Constitution having been inspired by the Native Passes Regulations
1900 and Ordinance 1903, the 1906 Master and Servant’s Ordinance, and the
Vagrancy (Amendment) Ordinance of 1925, a colonial legislation was used to

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Petition No. 5 (EOO7) of 2021
regulate African labour and African movements. The appellant argues that
owing to the historical context of the impugned provisions having been enacted
more than 70 years ago, such law did not consider human rights and good
governance for lack of constitutional provisions such as Articles 238, 10, and 73.
To reinforce this assertion, the appellant referred to the case of Attorney
General vs. Salvatory Abuki [1999] UGSC 7 where the Supreme Court of
Uganda whilst declaring Section 7 (1) and 7 (2) of the Witchcraft Act
unconstitutional held that the aforesaid provisions must give way to the new
constitutional order.

[22] The appellant urges the Court to look at similar provisions in the United
Kingdom, Turkey, and Malawi. With reference to the United Kingdom, the
appellant points out the repeal of the Prevention of Terrorism Act 2005 which
had a “control order” that prevented and restricted terrorism suspects'
movement and activities to fight terrorism. It is also pointed out that the
Terrorism Prevention and Investigation Measures Act 2011 was later enacted to
provide for broad judicial oversight of the system, including a requirement for
High Court permission to impose the measures, full review of each case in which
measures are imposed and rights of appeal for the individual against refusal of
a request to revoke or vary the measures.

[23] The appellant also cites the curfew declared by Turkish Authorities under
the Provincial Administrative Law during the upsurge in violence and terrorism
by insurgents of the Kurdistan Workers Party. The European Commission
For Democracy (through Law Venice Commission) Opinion on the
legal framework governing curfews urged Turkish authorities to no longer use
the provisions of Provincial Administration Law as a legal basis for declaring
curfews and to ensure that the emergency measures including curfews are
carried out in compliance with the constitutional and legislative framework
showing due regard to relevant international standards and complying with
national values and international obligations concerning the protection of
fundamental rights. The Venice Commission further advised the Turkish
authorities to introduce necessary amendments to state emergency laws so that
there is a clear description in the law of the material, procedural and temporal

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Petition No. 5 (EOO7) of 2021
arrangements for the implementation of curfews, particularly the conditions
and safeguards to which they must be subjected including parliamentary and
judicial supervisions.

[24] The appellant also referred to the State (on the application of)
Esther Cecilia Kathumba and 4 Others vs. President of Malawi and
5 Others, Constitutional Reference No. 1 of 2020, where the Malawian court
in declaring the lockdown rules unconstitutional held that a state of emergency
was imposed without following Section 45 of the Malawian Constitution that
provides for checks and balances.

ii) The 1st, 2nd and 3rd respondent’s submission

[25] The 1st, 2nd, and 3rd respondents submit that there was a general
rebuttable presumption that a statute or statutory provision is constitutional
and that the burden of proof rests on the person who alleges unconstitutionality.
The Respondents cited Katiba Institute & Another vs. Attorney
General & Another [2017] eKLR, Law Society of Kenya vs. Attorney
General & Another SC. Petition No. 4 of 2019 [2019] eKLR to support their
assertion.

[26] On whether sections 8 and 9 of the Public Order Act violate human rights
as guaranteed by the Constitution, the respondents submitted that there was no
infringement of the appellant’s rights. They also submit that in cases where
public order or safety is at risk of being violated by factors such as terror attacks
or insecurity, the limitation of the affected persons and freedom rights is
justifiable, reasonable, and necessary under Article 24 of the Constitution. They
further submit that the imposition of the curfew was necessary to ensure public
safety and security and to maintain public order.

[27] The respondents also argue that the curfew order issued was in line with
the precautionary principle as elucidated in the Republic vs Ministry & 3
Other Ex-Parte Kennedy Amdany Langat & 24 Others [2018] eKLR.
They urge that the curfew did not only apply to Muslims but all the residents of
the four counties, therefore, they did not violate the right to freedom of religion.
It is also their argument that the appellant failed to address the question of

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Petition No. 5 (EOO7) of 2021
proportionality between the claim to their rights and public interest and further
that they did not produce evidence to support their claim for violation of its
rights. The respondents cited the case of East Africa Cables vs. Public
Procurement Complaints Review Appeals Board & Another [2007]
eKLR.

[28] The respondents argue that the imposition of the curfew was part of the
government’s mandate to ensure the provision of security to its people as
stipulated under Article 238 (2) of the Constitution. In this regard, reliance is
placed on the Law Society of Kenya vs. Attorney General & Another:
National Commission for Human Rights & Another (Interested
Parties) [2020] eKLR, National Super Alliance Kenya vs Cabinet
Secretary for Interior and Coordination of National Government &
3 Others [2017] eKLR and CKW vs Attorney General & Another [2014]
eKLR. Lastly, the respondents urge that the appellant has no valid grievance
before this Court and that the limitation was reasonable and justifiable in an
open and democratic society based on human dignity, equality, and freedom.

E. ISSUES FOR DETERMINATION

[29] From the pleadings and the parties’ submissions, the following issues
crystallize for determination:

i. Whether Sections 8 and 9 of the Public Order Act are unconstitutional

vis a vis Article 58 of the Constitution.
ii. 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.

F. DETERMINATION

[30] We shall first dispense with the issue of jurisdiction. The appellant has
filed this appeal as a matter of right pursuant to Article 163(4)(a) of the
constitution. The guiding principles set by this Court to interpret whether this
Court has jurisdiction to hear and determine this appeal have been set out in
several cases by this Court. In the case of Lawrence Nduttu & 6000 others

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Petition No. 5 (EOO7) of 2021
vs Kenya Breweries Ltd & another [2012] eKLR and Hassan Ali Joho
& another vs Suleiman Said Shahbal & 2 others [2013] eKLR, this Court
established that an appeal must originate from a matter where the issues
contested revolved around the interpretation or application of the Constitution
and the same is now being contested before the Supreme Court. Where the case
has had nothing or little to do with the interpretation or application of the
Constitution, it cannot support a further appeal to the Supreme Court under the
provisions of Article 163(4)(a) of the Constitution.

[31] We have reviewed the record of appeal and heard the submissions by the
parties and find that this appeal faults the challenges the Court of Appeal’s
finding on whether the provisions of sections 8 and 9 of the Public Order Act
are constitutional vis a vis Article 58 and the rights and freedoms under Articles
26,27,29,32 and 39 of the Constitution which were purportedly violated as a
result of enforcement of curfew orders and restrictions in Wajir, Garissa,
Mandera and Tana River Counties between 2nd April 2015 and 18th June 2015.
We find that this appeal is properly before us pursuant to Article 163(4)(a) of
the Constitution.

(i) 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 the Constitution. We
shall reproduce the provisions and analyse the constitutionality thereof.

“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
specified in the curfew order, remain indoors in the premises at which

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Petition No. 5 (EOO7) of 2021
 he normally resides, or at such other premises as may be authorized by
or under the curfew order.

(2)(a) 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.

(b) 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.

(4) Deleted by Act No. 19 of 2014, s. 4(b).

(5) The variation or rescission of a curfew order shall be published in

like manner as that provided in subsection (3) of this section for the
publication of a curfew order.

(6) Any person who contravenes any of the provisions of a curfew order
or any of the terms or conditions of a permit granted to him under
subsection (1) of this section shall be guilty of an offence and liable to a

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Petition No. 5 (EOO7) of 2021
 fine not exceeding ten thousand shillings or to imprisonment for a term
not exceeding three months, or to both such fine and such imprisonment.

(7) A certificate under the hand of the authority making, varying or

rescinding a curfew order, specifying the terms, and the date and
manner of publication, of such order, variation or rescission, shall be
prima facie evidence thereof in all legal proceedings.

(8) Any person who, without lawful excuse, carries or has in his
possession, in any area in which a curfew order is in force and during
the hours during which the curfew imposed thereby is operative, any
offensive weapon shall be guilty of an offence:

Provided that no person shall be convicted of an offence under this

section if he proves to the satisfaction of the Court that he carried or
had in his possession the offensive weapon—

(i) solely for domestic or defensive purposes within enclosed

premises which he lawfully occupied or in which he was
lawfully present; or

(ii) with the authority of his employer and solely for domestic or
defensive purposes within enclosed premises in the lawful
occupation of his employer”.

[33] Section 9 of the Public Order Act provides for curfew restriction orders as
follows:

“(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

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Petition No. 5 (EOO7) of 2021
 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.

(4) Every curfew restriction order shall, forthwith on its being made, be
reported to the Commissioner of Police, and the Commissioner of Police
may, if he thinks fit, vary or rescind the curfew restriction order.

(5) The variation or rescission of a curfew restriction order shall be

published in like manner as that provided in subsection (3) of this section
for the publication of a curfew restriction order.

(6) Any person who contravenes any of the provisions of a curfew

restriction order or any of the terms or conditions of a permit granted
to him under subsection (1) of this section shall be guilty of an offence
and liable to a fine not exceeding ten thousand shillings or to
imprisonment for a term not exceeding three months, or to both such
fine and such imprisonment.

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Petition No. 5 (EOO7) of 2021
 (7) A certificate under the hand of the authority making, varying or
rescinding a curfew restriction order, specifying the terms, and the date
and manner of publication, of such order, variation or rescission, shall
be prima facie evidence thereof in all legal proceedings”.

[34] Article 58 of the Constitution provides as follows on the declaration of a

state of emergency:

“1) A state of emergency may be declared only under Article 132 (4)(d)
and only when—
(a) the State is threatened by war, invasion, general insurrection,
disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to meet the circumstances for which the
emergency is declared.
(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; and
(b) 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; and
(ii) by the majorities specified in clause (4); and
(b) 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; and

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Petition No. 5 (EOO7) of 2021
 (c)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; and
(ii) the legislation is consistent with the Republic’s obligations under
international law applicable to a state of emergency; and
(b) 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 the Constitutional provisions on
state of emergency, we now turn to the analysis of the 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 vs
Attorney General & Another Petition No. 4 of 2019[2019] eKLR this Court held
as follows at paragraph 36:

“Before determining the above issues, we consider it pertinent to restate

the approach that every court should take when determining the
question whether any statutory provision is unconstitutional or not.
It is alleged in the Petition of Appeal that the cited provisions of WIBA
should be struck off for being in violation of the former and present
constitutions. In addressing that issue, it must always be borne in mind
that the Legislature’s primary constitutional mandate is the making of
laws. Those laws set the ultimate direction of all activities in a State and
the actions of all persons. Thus, there exists principles that
underline the determination of constitutional validity of a statute or

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Petition No. 5 (EOO7) of 2021
 its provisions because it is the function of the Courts to test ordinary
legislation against the governing yardstick: the Constitution.”

[37] This Court further enumerated on the applicable presumption and onus
dischargeable as follows at paragraph 37:

“At the forefront of these principles is a general but rebuttable

presumption that a statutory provision is consistent with the
Constitution. The party that alleges inconsistency has the burden of
proving such a contention. In construing whether statutory provisions
offend the Constitution, the courts must therefore subject the same to
an objective inquiry as to whether they conform with the
Constitution.”

[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.”

[39] Reference is also made to this Court’s precedent and findings made by the
courts on legislative interpretation in the following respective cases; Gatirau
Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR,
and Hamdarddawa Khana vs Union of India and Others 1960 AIR 554
and Pepper vs Hart [1992] 3 WLR.

[40] The Supreme Court of India in the case of Reserve Bank of India vs
Peerless General Finance & Investment Co. Ltd & Others [1987] 1 SCC
424 considered the intent of text and context in interpretation and held as
follows.

“Interpretation must depend on the test and the context. They are the
bases of interpretation. One may well say if the test is the texture,
context is what gives the colour. Neither can be ignored. Both are
important. That interpretation is best which makes the textual
interpretation match the contextual.”

[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

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Petition No. 5 (EOO7) of 2021
Secretary and the Police without checks and balances or parliamentary and
judicial oversight contrary to the provisions of Article 58 and 95 of the
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.

[43] The Court in determining the purpose of a curfew held as follows in the
case of Muslims for Human Rights (MUHURI) & 4 others v Inspector
General of Police & 2 others [2014] eKLR

“The underlying objective of a curfew is to enable security personnel to

move into an area affected by criminal acts leading to public disorder,
or such other acts that affect normal operations of the residents of the
affected area…”

[44] In analyzing the 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

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Petition No. 5 (EOO7) of 2021
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.

[46] In the case of Republic vs Ministry & 3 others Ex-parte Kennedy

Amdany Langat & 27 others, Judicial Review Case No. 2 of 2018 and JR
709 of 201 (Consolidated) [2018] eKLR held as follows on the application of the
precautionary principle.

“126. Therefore, applying the precautionary principle, which principle

is designed to prevent potential risks, I find and hold that it is the duty
of the state to take protective measures without having to wait until the
reality and seriousness of those risks are fully demonstrated or
manifested. This approach takes into account the actual risk to public
health, especially where there is uncertainty as to the existence or
extent of risks to the health of consumers. The state may take
protective measures without having to wait until the reality and the
seriousness of those risks are apparent.”

[47] Further, there was need to maintain national security considering that the
nature of terrorism translates across the victim country’s borders. Article 238
(2) of the Constitution provides that the principles of national security are that
it is subject to the authority of the 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

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Petition No. 5 (EOO7) of 2021
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 the Constitution on
a declaration of a state of emergency. A reading of Article 58 of the 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] The 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.

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Petition No. 5 (EOO7) of 2021
[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 the 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 the 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 the
Constitution on the right to life, and that the voluntary limitation violated the
right to liberty under Article 29 of the 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 the
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 the 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 the Constitution.

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Petition No. 5 (EOO7) of 2021
[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.

[57] Article 4 of the International Covenant on Civil and Political Rights

specifies that:

“In time of public emergency which threatens the life of the nation and
the existence of which is officially proclaimed, the States Parties to the
present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and
do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin”.

[58] Other treaties containing a derogation clause include Article 15 of the

European Convention on Human Rights, Article 4 of the International
Covenant on Civil and Political Rights, Article 27 of the American Convention
on Human Rights and part V of the European Social Charter. These provisions
generally require states to officially notify the respective treaty regime and
indicate the reasons for their derogation as well as the duration.

[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

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Petition No. 5 (EOO7) of 2021
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 specifically 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 scientific evidence and neither arbitrary nor discriminatory in
application; and
vi) 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

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Petition No. 5 (EOO7) of 2021
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 the Constitution provides as follows on the limitation of rights

and fundamental freedoms; that

“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—

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) 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

(e) the relation between the limitation and its purpose and whether
there are less restrictive means to achieve the purpose”.

[66] This Court in the case of Karen Njeri Kandie vs Alassane Ba &
another SC Petition No.2 of 2015 [2017] eKLR held at paragraph 78 that:

“Before applying the ‘reasonable and justifiable’ test, therefore, a court

must first determine whether a right has been limited under a
particular law . . .it is important to consider the factors set out in the

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Petition No. 5 (EOO7) of 2021
 Constitution that will assist us to answer this question including the
nature of the right, the importance of the purpose of the limitation, the
nature and extent of the limitation and the fact that the need for
enjoyment of the right one individual does not prejudice the rights of
others, as well the consideration of the relationship between the
limitation and its purpose, and whether there is a less restrictive
means to achieve that purpose’’

[67] Chaskalson P, of the Constitutional Court of South Africa held as follows

on the limitation test in the case of S v Makwanyane and Another [1995]
ZACC 3 at paragraph 104:

“The limitation of constitutional rights for a purpose that is reasonable

and necessary in a democratic society involves the weighing up of
competing values, and ultimately an assessment based on
proportionality. This is implicit in the provisions of s 33(1). The fact
that different rights have different implications for democracy and, in
the case of our Constitution, for ‘an open and democratic society
based on freedom and equality’, means that there is no absolute
standard which can be laid down for determining reasonableness and
necessity. Principles can be established, but the application of those
principles to particular circumstances can only be done on a case-by-
case basis. This is inherent in the requirement of proportionality,
which calls for the balancing of different interests. In the
balancing process the relevant considerations will include the nature of
the right that is limited and its importance to an open and democratic
society based on freedom and equality; the purpose for which the right
is limited and the importance of that purpose to such a society; the
extent of the limitation, its efficacy and, particularly where the
limitation has to be necessary, whether the desired ends could

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Petition No. 5 (EOO7) of 2021
 reasonably be achieved through other means less damaging to the right
in question.’’

[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 the 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

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Petition No. 5 (EOO7) of 2021
justifiable and reasonable in the circumstances and that there was no violation
of the enjoyment of human rights as alleged by the appellant.

G. ORDERS

i. The appeal is hereby dismissed

ii. Each party shall bear its own costs.
iii. We hereby direct that the sum of Kshs. 7,000/-, deposited as
security for costs upon lodging of this appeal, be refunded to
the appellants.

DATED and DELIVERED at NAIROBI this 23rd day of June 2023.

…………………………………………………
M. K. IBRAHIM
JUSTICE OF THE SUPREME COURT

……………………………………. …………………………………………..
S.C WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

……….……………..……………… …………………………………………
I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR
SUPREME COURT OF KENYA

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Petition No. 5 (EOO7) of 2021