NASA loses case to lift the curfew on Lamu, Tana River and Garissa counties

National Super Alliance (NASA) suffered a setback on Friday after a Voi High Court dismissed a petition to lift the curfew imposed on Lamu, Tana River and Garissa counties.

In a petition dated 19th July and filed at Malindi High Court, NASA argued that the election would not be transparent and fair if observers and agents would not be allowed to the polling stations.

The petition also argued that voters in the three counties would be disenfranchised by the curfew because the time of voting would have been reduced.

The petition also argued that movement of the residents had been restricted thereby interfering with their daily lives.

Ag. Cabinet Secretary for Interior Ministry Fred Matian’gi, Inspector General of Police, National Police Service and Independent Electoral and Boundaries Commission (IEBC) were named as first, second, third and fourth respondent respectively.

The case was later transferred to Voi High Court where Jubilee Party was enjoined in the case as an interested party on 1st August.

In her ruling, Lady Justice Jackline Kamau noted that the four fundamental rights as stipulated in the Bill of Rights had not been violated by the curfew.

She added that all other rights were subject to restrictions provided such restrictions were reasonable and justifiable.

She further noted that NASA failed to prove how the curfew would disenfranchise the voters given that the curfew was imposed at night.

She noted that the Election Act allowed the presiding officers in polling station in consultation with the returning officers to extend the voting time for voters who would be at the polling station by 5 pm.

She said section 8 of the Public Order Act under which the curfew was declared was not unconstitutional and that it was permissible for such acts in the view of frequent terrorist attack in the regions under curfew.

The curfew in the three counties is lawful, legal and constitutional and it did not contravene the fundamental rights of the residents of the three counties, read part of the judgment.

She noted that in the light of the loss of life and destruction of property in Lamu, Tana-River and Garissa counties, the government was in order to invoke the act.

She also stated that the curfew was not absolute as residents with emergency and special cases would be allowed to move provided they liaised with the Deputy County Commissioner’s office for arrangements on how that could be implemented.

The court agreed that atrocious activities were being carried out from May to end of July and stated there was no guarantee that similar attacks will not happen on the day of the election. Such acts would compromise the integrity of a free and fair election that is free from violence and intimidation.

She noted that due to the high stake in elections, it would be foolhardy to trivialize security issues as they have the potential to plunge the country into chaos.

The court further quashed the request to lift the curfew to allow residents to vote noting that it was not in the best interest of the national security.

Judge Kamau however directed that the Interior Ministry should engage the public and their elected leaders before the curfew was extended to allow for public participation.

The court also recommended that Parliament should amend section 8 of Public Order Act to indicate time limitations for curfews to avoid that law being used to oppress people by a dictatorial regime.

IEBC lawyer Justus Munyithya hailed the judgment as progressive and sound as the court also took into consideration the security aspect during the elections.

The Act that imposed the curfew was meant to safeguard the interest of all involved in this election, he said.

Source: Kenya News Agency