Coalition for Reforms and Development (CORD) & 2 others v Republic of Kenya & another
The bottom line
#Kenya's Court of Appeal struck down a mass surveillance provision in the Security Laws (Amendment) Act for violating privacy, but upheld the rest of the Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were procedural violations during the passing of the contentious Act of Parliament
- 2.Whether the provisions of the SLAA as cited by the parties are unconstitutional and if so, whether the High Court erred in holding that those provisions did not contravene the Constitution
- 3.Whether there were procedural violations in the passage of the bill that rendered the acts that were passed unconstitutional
- 4.Whether there was adequate public participation
- 5.Whether there was a violation of the standing orders during the passage of the bill
- 6.Whether there was concurrence between the speakers of the 2 Houses of parliament and if not, whether this rendered the bill unconstitutional
- 7.Taking into account the circumstances in which the bills were passed by Parliament whether the bill was properly presented to the President for assent
Key legal issues
#Whether public participation in the enactment of the SLAA was adequate
Public participation was proper and sufficient; the shortened timeframe was justified by the urgency of the security situation, and 46 stakeholders participated
The court restated the BAT framework that participation must be real, not illusory, with reasonable notice and opportunity. It found the National Assembly published notices in widely circulating dailies, invited memoranda, held hearings, and received input from 46 stakeholders including the appellants themselves. The urgency created by the Al Shabaab attacks justified shortening the publication and participation periods, and each case turns on its own circumstances.
Whether disorder in the National Assembly and breach of Standing Orders vitiated the passage of the Bill
Chaos during debate did not vitiate the legislation; the Hansard is the official record and the ten-minute video clip was not conclusive of the whole process
The court accepted that courts may intervene where Standing Orders with constitutional underpinning are breached, but found the Hansard showed only moments of loud consultation and the Bill was ultimately passed. A ten-minute video clip could not establish the character of the entire sitting, and admission of a document does not bar the court from questioning its authenticity. The passage of the Bill was therefore not vitiated.
Whether there was concurrence between the Speakers of the two Houses under Article 110(3)
Consultation and concurrence between the Speakers was established through their correspondence, complying with Article 110(3) and Standing Order 122
Relying on the Supreme Court's Advisory Opinion No. 2 of 2013, the court noted both Speakers must jointly determine the nature of a Bill. Correspondence of 15th and 18th December 2014 showed the Speakers were aware of the Bill and the Senate Speaker advised on county-related clauses which were deleted. The Senate Speaker never protested non-consultation, so the requirement was satisfied.
Whether section 86 of the SLAA (appointment of the Inspector-General) was unconstitutional
Section 86 is constitutional; Article 232 public-service values do not apply to the Inspector-General, a State officer whose appointment is specifically governed by Article 245(2)
The court distinguished the Inspector-General from public service officers under Article 260 and from independent offices under Article 248, noting the Constitution deliberately provides a different appointment process for the Inspector-General than for Deputy Inspectors-General. A holistic interpretation does not support the claim that competitive recruitment under Article 232 was mandatory for this office.
Whether the mandatory minimum sentence provisions (sections 13, 14, 62, 93) could be considered
The arguments were not properly before the court, having not been pleaded and having been raised for the first time in submissions by an interested party
Applying Muruatetu and Methodist Church v Fugicha, an interested party may not introduce new issues; applying Daniel Toroitich arap Moi, submissions are not evidence. The constitutionality of the minimum sentence provisions was never raised in the petition nor addressed in the impugned judgment, so the court declined to entertain the challenge, noting also the Supreme Court's recent guidance in Republic v Mwangi (ISLA).
Whether sections 15 and 66 (extended pre-trial detention of 90 and 360 days) are unconstitutional
The provisions are constitutional; they accord statutory imprimatur to case-law criteria on compelling reasons and detention is court-sanctioned
The court held the provisions flesh out Article 49(1)(f)-(h) safeguards, requiring sworn applications, notice to the suspect, and judicial satisfaction of compelling reasons before extended remand. The court process is the bulwark against abuse, and remedies for wrongful or malicious detention already exist in the law of tort, so Parliament need not legislate a remedy.
Whether section 69 of the SLAA introducing section 36A of the Prevention of Terrorism Act (mass surveillance) is constitutional
Section 36A is unconstitutional for excluding any penal sanction for abuse of the wide interception powers, lacking sufficient safeguard for the right to privacy; the declaration is suspended for 18 months
The court distinguished section 36A from section 36 of POTA: the former grants interception powers to any National Security Organ without court permission and without penal sanction for abuse, while the latter is confined to police, requires court orders and carries penal consequences. The court agreed the High Court erred in reading in a court-sanction requirement. The words 'directly relevant' sufficiently circumscribe when the power may be deployed, but the absence of sanction renders the limitation impermissible.
Legal principles established
#- The Court of Appeal on a first appeal must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand
- There is a rebuttable presumption of constitutionality of statutes; the burden of proving unconstitutionality lies on the party alleging it
- Once a prima facie violation of a right is established, the burden of justifying the limitation shifts to the party seeking to uphold it
- Public participation must be real and not illusory, but the degree of participation is determined on the circumstances of each case, and urgency may justify a shortened timeframe
- An interested party may not frame fresh issues or introduce new issues for determination; issues raised for the first time in submissions are not properly before the court
- Submissions cannot take the place of evidence
- A limitation of rights lacking a penal sanction for abuse may lack sufficient safeguard against impermissible violation of privacy
Court orders
#- 1.Set aside the findings of the High Court on the constitutionality of section 69 of the Security Laws (Amendment) Act, which introduced a new section 36A to the Prevention of Terrorism Act
- 2.Declared section 69 of the Security Laws (Amendment) Act and consequently section 36A to the Prevention of Terrorism Act unconstitutional for violating the right to privacy guaranteed under Article 31 of the Constitution
- 3.Suspended the coming into effect of the declaration of unconstitutionality of section 69/section 36A for a period of eighteen months for Parliament to enact the appropriate safeguards
- 4.Upheld all the other findings and orders made by the High Court in the judgment of 23rd February 2015
- 5.Ordered that each party shall bear its costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Consolidated Petitions No. 628 of 2014, 630 of 2014 & 12 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's determination of consolidated constitutional petitions (Article 164 Court of Appeal jurisdiction); the judgment describes it as 'a first appeal'
Relief refused
#Declaration that the Security Laws (Amendment) Bill 2014 in its entirety was not procedurally debated and passed and is a nullity
Court found public participation was proper and sufficient and no procedural violations attended the passage of the Act
Declaration that sections 13, 14, 15, 62, 66 and 93 of the SLAA (mandatory minimum sentences, vagueness, pre-trial detention) are unconstitutional
Arguments on minimum sentences not pleaded and raised for the first time in submissions; vagueness not proved; pre-trial detention provisions are court-sanctioned and justifiable
Declaration that section 86 of the SLAA (direct presidential appointment of Inspector-General of Police) is unconstitutional
Article 232 public-service values do not apply to the Inspector-General, who is a State officer whose appointment process is specifically set out in Article 245(2)
Appeal by the 1st appellant (CORD) in its entirety
1st appellant failed to participate in the hearing of the appeal despite due service
Costs
As the consolidated appeals concern matters of public interest, each party shall bear its costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we partially allow the consolidated appeals, only to the extent of the following orders:
We hereby declare section 69 of the Security Laws (Amendment) Act and consequently section 36A to the Prevention of Terrorism Act unconstitutional, for violating the right to privacy guaranteed under Article 31 of the Constitution. We however suspend the coming into effect of this declaration for a period of eighteen months, for Parliament to enact the appropriate safeguards in the operation of the section.
All the other findings and orders made by the High Court in the said judgment are otherwise upheld.
As the consolidated appeals concern matters of public interest, each party shall bear its costs of the appeal.
We therefore find that there were no procedural violations during the passing of the SLAA. That argument must fail and is consequently dismissed.
Firstly, the presumption is that every Act of Parliament is constitutional, and the burden of proof lies on any person who alleges otherwise.
Public participation is a process that facilitates the generation and confirmation of decisions through consultations with different groups, classes of groups, natural and jurisdiction persons and entities before a decision is arrived at It is a cultivated campaign to give a voice to the voiceless. It is not ticking of the box marking that a legal requirement has being fulfilled.
Submissions cannot take the place of evidence.
An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court.
Issues in the judgment
#The quoted High Court passage first states there was no concurrence between the Speakers, then holds there was consultation and concurrence
The 3rd appellant is misdescribed as 'the 3rd respondent' in the passage citing South African authority
The 2nd respondent is named where the 2nd appellant's public participation submissions are discussed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Coalition for Reforms and Development (CORD) & 2 others v Republic of Kenya & another", Case Analysis (2024). Civil Appeal 188 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1955/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.