Demands for some disaster or serious situation to
be formally declared a “state of emergency” (SoE) are not uncommon. Why? I
suspect it is because those who want a declaration understand that in some
countries this unlocks resources. Maybe they also feel that a declaration of an
emergency gives the President more powers to deal with extraordinary situations
than are usually available.
The idea of SoE law is that special measures may be need to be taken by government to respond rapidly to a situation.
Those measures may be things that should not be available in normal times. Even in an emergency, however, government must act on the basis of law. So, the common system is for passage of a law that would operate only when the SoE has been declared.
An interesting article in The Atlantic magazine said of the US during Trump’s first term, “The moment the president declares a ‘national emergency’ - a decision that is entirely within his discretion — more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power.
“For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts.”
Kenya has an unfortunate history with states of emergency. The response to the “Mau Mau” rebellion is, of course, the most infamous.
Then, to deal with the “Shifta rebellion”, a state of emergency was declared just 15 days after Independence in 1963. The declaration was not lifted until 1991. In 1970 Parliament passed an Indemnity Act.
It banned any court proceedings claiming wrongdoing by any public officer or member of the military in an area a bit wider than the North Eastern Province between December 1963 and 1967 if “done in good faith” and in the execution of duty in the public interest. That Act is still part of Kenyan law.
The Truth, Justice and Reconciliation Commission commented that the Act “was … admission of the existence of … very serious violations, including sexual violence”. It observed that this “was another Northern Kenya-specific piece of legislation that … still is highly resented in the region as it shields the crimes of government agents and military officers from legal inquiry and accountability”.
The constitution
The Independence Constitution allowed the head of state (governor-general), who acted on the “advice” of the Prime Minister (Jomo Kenyatta), to declare a state of emergency. If Parliament was sitting, the declaration had to have the approval of at least 65 per cent of one house - and within a week required the approval of at least 65 per cent of the other house.
Amendments to the Constitution referred to the 1960 Preservation of Public Security Act (PPS Act), the law actually used in the 1963 Declaration, but it removed the requirement for prior approval by Parliament ¾ requiring approval by the then only house within 28 days.
The old constitution protected any law made or anything done in this situation from being held unconstitutional.
The new constitution says that the president may declare a state of emergency (Article 132(4)(d)) and the Act says the president may then make regulations (the president does not usually do that). It tries to limit its scope, mentioning threats of war, invasion, general insurrection, disorder, natural disaster” but rather weakens this by adding “or other public emergency” (Article 58(1)). However, it adds that the declaration must be “necessary to meet the circumstances”.
The declaration will not last more than 14 days unless approved by the National Assembly (Article 58(2)). And the Supreme Court can hear any case challenging the validity of a declaration or any law made or action taken (Article 58(5)).
Any law made because of an SoE must be consistent with international law. The African Charter on Human and People’s Rights does not indicate any special limits during an SoE and the view of the African Commission is that this means that the usual principles apply. In the charter, various rights may be limited by national law.
In fact, the Kenyan constitution, Article 24, is more demanding than the charter. And our constitution also has no specific provision about limiting rights in a SoE, except that law may limit a right “only to the extent that the limitation is strictly required by the emergency”.
To make a decision on this, a court should take the Article 24 approach, which is all about requiring the limitation of rights to be no more than really necessary in the circumstances.
The constitution bans detention without trial unless there is declaration of SoE. In that case it must be provided for in law, and must be “strictly required by the emergency”, of course.
The constitution also says that the famous order of habeas corpus cannot be limited. This means someone detained under law (or someone on their behalf) could get a court order to bring him or her before the court. But if the law allows their detention, then habeas corpus does not achieve their release.
The constitution also says that the law must not protect the State or any person from liability for any unlawful act ¾ no Indemnity Act now.
Current law
The 1960 Preservation of Public Security (PPS) Act still appears as law on the website of KenyaLaw - despite the government having promised in 1997 to repeal it. The Supreme Court, in a case in 2023, described it as “repealed” - no longer law. It’s not quite clear why.
The office of the Attorney General treated it as law in 2023. And apparently it was relied on by the then Deputy President Rigathi Gachagua in 2024 to suspend licences for manufacturers of second-generation alcohol.
This was an error: even if it is still law, this power is only to be used if the president has made an order bringing the Act into effect - then regulations of that sort may be made. No such order was in effect in 2024.
If still in force, the Act must be read in a way that makes it comply with the constitution - including not referring to Article 29 of the Independence Constitution, as it now does, but to Articles 132 and 58 of the new.
Arguably the best approach would be to declare the PPS Act unconstitutional because of the extent of its inconsistency with the 2010 Constitution.
An important issue is that while the constitution talks of “state of emergency”, the Act doesn’t even mention “emergency” - which means the need to take urgent action. The Act is much wider in the situations it covers than the constitution.
For example, it includes “the prevention and suppression of … disorder and crime”. The powers it permits include some common in emergency powers legislation such as compulsory acquisition of land or regulation of movement. But it also allows suspension of any other law, and permits “anything else necessary” which is very wide.
Does government need it?
I suspect government does not feel it does. They can even detain people without charge for nearly a year if they can convince the courts, it is a terrorism case, and they need time for investigations. And the extent of abductions, including for rendition to other countries, is another way of dealing with the unwanted.
And it seems prepared to relocate some people - such as street families. Not having legal powers doesn’t seem to bother the government.
Apart from the PPS Act, there is also the Public Order Act, which allows curfew orders - something included in the PPS Act. There is also the Disaster Risk Management Act, which for example, permits relocation of people.
The time has surely come to take a comprehensive look at this colonial legislation and related laws, and decide what is really necessary to handle emergency situations, and what is within the scope of the constitution.
