Was the banning of MRC by the Minister of Internal Security Constitutional and Justified?
The MRC Cases at the High Court and Court of Appeal
Randu Nzai Ruwa and 2 others v The Internal Security Minister and Attorney General, (Miscellaneous Application No.468 of 2010)
The filing of the Petition at the High Court was as a result of the actions of the Internal Security Minister who issued a gazette notice on 18th October 2010 banning the Mombasa Republic Council (MRC). The Minister purported to do this under section 22 of the Prevention of Organised Crimes Act (POCA), which allows the Minister where there are reasonable grounds to believe that a specified group is engaged in an organised criminal activity to declare the specified group an organised criminal group. It was not until 21st October 2010 when they got to know through the daily newspaper that the MRC was a proscribed entity. This then necessitated the filing of this petition by representatives of the MRC.
According to the Petitioners, the organization’s objectives were to agitate for their land rights, natural resources, economic and political freedom and the advancement of the rights of indigenous coastal people. As an organised group, they had held several meetings in social halls, churches and schools.
In response to the Petition in Affidavits filed by the then Permanent Secretaries (PS) in charge of Provincial Administration and Internal Security, Mr. Kimemia and Mr. Iringo justified the Minister’s actions based on government intelligence reports stating that MRC was an active arm of the Republican Revolutionary Council (RRC), whose aim was to have the Coast Province declared a republic. This was, according to the government, a threat to territorial integrity and national security. According to the PS, MRC was not registered as a society or a political party and it was engaging in oathing and training of militia. It was the government’s position that the members of MRC were engaged in criminal activities as evidenced by copies of charge sheets.
The Petitioners on the other hand, denied any links with the RRC and stated that none of those arrested had been found to be members of RRC and they were all acquitted of the charges.
In the course of the hearing of the petition, Katiba Institute was admitted by the court to participate as Amicus Curiae.
Issues to be determined
At the High Court, the court addressed the following issues:
- Whether the Petition was an attempt to circumvent the provisions of Section 22 of POCA
- Whether the petition was fatally defective for lack of specificity and
- Whether the proscription was a limitation to the rights of the petitioners and whether this limitation was justified.
The Petitioners argued that, MRC was not engaged in any of the criminal activities set out in section 3 of POCA and the gazette notice did not set out which of the fifteen types of organized criminal activities defined by the Act were MRC members accused of.
They submitted that the actions were a violation of their rights to association, right to assemble, political rights, right to fair administration and rights to a fair hearing under article 36,37,38,47 and 50 respectively, and the limitation was not justified under Article 24 of the Constitution.
The three judge bench, Mwera, Kasango and Tuiyott, JJ. delivered a unanimous judgement on 25th July 2012 holding that the Gazette Notice No. 12585 published by the Minister of State for Provincial Administration and Internal Security that Mombasa Republican Council was an organized criminal group was unconstitutional and lifted the ban.
In its judgment, the court pointed out that whereas the state is not required to give a detailed account of its actions, it has to meet the constitutional threshold by placing evidence before court for judicial assessment. On examination of information produced by the Respondents, the court noted that the offences the members of MRC were charged with were not related to propaganda for war, incitement to violence, violence itself, hate speech or advocacy of hatred.
By banning MRC, the court held, that the state had used the most restrictive means available under the law taking into account Article 24(1)(e) that is, “the relation between the limitation and its purpose and whether there is a less restrictive means to achieve the purpose.” It was therefore incumbent upon the State to demonstrate that in the circumstances, the ban, which was an extreme measure was reasonable and justifiable.
Court of Appeal –The Attorney General, Ministry of Internal Security v Randu Nzai Ruwa, Robert Charo Tukwatukwa and Nyae Ngao, Civil Appeal No. 275 of 2012
In Civil Appeal No. 275 of 2012, the Attorney General filed an appeal on the grounds that:
- The decision by the Minister in proscribing MRC was lawful as it was founded on reasonable justification.
- Having engaged in criminal activities it was entitled to freedom of assembly and association and constitutional reliefs.
- MRC’s call for secession was unconstitutional and a threat to territorial integrity of the Republic.
- The POCA having come into operation before the Constitution 2010 article 24 did not apply retrospectively to the ban of MRC.
The court narrowed the issues to be as follows:
- Whether the proscription restricted or limited the fundamental rights and freedoms of the MRC, and
- Whether the restriction or limitation was in compliance with the Constitution 2010.
The unanimous judgement was delivered by a 5 judge bench of the Court of Appeal, that is Musinga, Ouko, Kiage, M’Inoti and J. Mohammed, JJ.A.
According to the judges, the determination of the case needed a balance between private rights and those of the general public. The court noted that under section 22 of POCA, the Minister must have reasonable grounds that an organised group is engaging in organised criminal activity before he proscribes it. He did not agree with Mr. Njoroge representing the Minister whose argument was that national security was a preserve of the executive arm of government and the court could not afford to be seen as passing judgment on the issue. The court’s view was that this notion was unacceptable and had no place in Kenya’s progressive Constitution, pointing out Article 238(2)(b) which states:
“ national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.”
It noted that, in determining whether the Minister’s decision was justified, the court’s view was that the proper procedure to be followed was that set out in Article 24 of the Constitution. The government’s position that POCA predates the Constitution and therefore article 24 was not applicable retrospectively was incorrect since its commencement date was 23rd September 2010.
The Court of Appeal agreed with the High Court that there was no evidence linking MRC to RRC and the government had not sufficiently demonstrated that MRC was engaging in criminal activity. By proscribing MRC, the government was denying members the right to assembly under Article 37, right to political rights under Article 38, right to fair administrative action under article 47 and there were no sufficient reasons to limit their rights under Article 24 of the Constitution.
On secession, the court deliberated on the issue of whether it is unconstitutional for a group of people to openly advocate for secession of a region. In his opinion, J. Musinga found that the manner in which the secession agenda is pursued and how a government responds to it is what determines whether that is a breach of the Constitution. The Constitution as well provides for an amendment of the Constitution to define territory of Kenya and the sovereignty of the people and hence the Constitution recognises a constitutional right to secession, but this can only be done in the manner stipulated under the Constitution, under article 255, 256 and 257. He further held that the government’s contention that MRC’s agenda of secession is unconstitutional had no basis in law.
The decision of the High Court was upheld.