Ask a lawyer:
What will a state of emergency in Kenya look like? What rights do we loose? and what power does the government gain?

Table of Contents

1. Introduction

2. State of Emergency in Kenya 2.1. Declaration of a State of Emergency 2.2. Powers of the President During a State of Emergency 2.3. Rights Suspended During a State of Emergency

3. Conclusion

Introduction

This response will address the question of what a state of emergency in Kenya would entail, specifically focusing on the rights that may be suspended and the powers the government gains during such a period. The analysis will be based on the Constitution of Kenya, 2010, and relevant legislation.

State of Emergency in Kenya

2.1. Declaration of a State of Emergency

The Constitution of Kenya, 2010, outlines the process for declaring a state of emergency. Article 157(1) states that the President may declare a state of emergency if the President is satisfied that there is a threat to the security of the country, a public emergency, or a natural disaster that threatens the well-being of the people.

The declaration of a state of emergency must be supported by a resolution passed by the National Assembly. This resolution must be passed by a two-thirds majority of all the members of the National Assembly.

The President must also inform the public of the reasons for the declaration of a state of emergency. This information must be provided within three days of the declaration.

2.2. Powers of the President During a State of Emergency

During a state of emergency, the President has the power to issue orders that are necessary to deal with the situation. These orders may include:

• Curfew: The President may impose a curfew, restricting the movement of people during certain hours. This power is derived from Article 157(2)(a) of the Constitution.

• Control of essential services: The President may take control of essential services, such as water, electricity, and transportation. This power is derived from Article 157(2)(b) of the Constitution.

• Control of the media: The President may restrict the media's freedom of expression and access to information. This power is derived from Article 157(2)(c) of the Constitution.

• Detention of individuals: The President may detain individuals without trial for a period of up to 90 days. This power is derived from Article 157(2)(d) of the Constitution.

• Control of movement: The President may restrict the movement of people within the country. This power is derived from Article 157(2)(e) of the Constitution.

• Control of property: The President may take control of property for the purposes of dealing with the emergency. This power is derived from Article 157(2)(f) of the Constitution.

2.3. Rights Suspended During a State of Emergency

The Constitution of Kenya, 2010, provides for the suspension of certain rights during a state of emergency. These rights are:

• Right to freedom of movement: Article 40 of the Constitution guarantees the right to freedom of movement. However, this right may be suspended during a state of emergency.

• Right to freedom of assembly: Article 37 of the Constitution guarantees the right to freedom of assembly. However, this right may be suspended during a state of emergency.

• Right to freedom of association: Article 36 of the Constitution guarantees the right to freedom of association. However, this right may be suspended during a state of emergency.

• Right to freedom of expression: Article 33 of the Constitution guarantees the right to freedom of expression. However, this right may be suspended during a state of emergency.

• Right to a fair trial: Article 50 of the Constitution guarantees the right to a fair trial. However, this right may be suspended during a state of emergency.

It is important to note that the suspension of these rights must be necessary to deal with the emergency situation. The suspension must also be proportionate to the threat posed by the emergency.

Conclusion

A state of emergency in Kenya is a serious matter that can significantly impact the rights and freedoms of citizens. The President's powers are expanded during such a period, allowing for the suspension of certain rights and the implementation of measures deemed necessary to address the emergency. It is crucial to remember that the suspension of rights must be justified, proportionate, and temporary, ensuring that the government's actions remain within the bounds of the Constitution and respect the fundamental rights of all Kenyans.