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

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Introduction

Legal Framework for a State of Emergency
- 1.1 Constitution of Kenya, 2010
- 1.2 Public Order Act
- 1.3 National Security Council Act
Declaration of a State of Emergency
- 2.1 Conditions for Declaration
- 2.2 Procedure for Declaration
Rights Affected During a State of Emergency
- 3.1 Rights that May Be Limited
- 3.2 Non-Derogable Rights
Government Powers During a State of Emergency
- 4.1 Enhanced Executive Powers
- 4.2 Legislative Powers
- 4.3 Judicial Oversight
Conclusion

1. Legal Framework for a State of Emergency

1.1 Constitution of Kenya, 2010

The primary legal framework for a state of emergency in Kenya is provided by the Constitution of Kenya, 2010. Key provisions include:

Article 58: This article outlines the conditions under which a state of emergency can be declared, the duration of such a declaration, and the parliamentary oversight required.
Article 132(4)(d): This article grants the President the power to declare a state of emergency with the approval of the National Assembly.
Article 24: This article provides the general framework for the limitation of rights and fundamental freedoms, which is applicable during a state of emergency.

1.2 Public Order Act

The Public Order Act (Cap 56) provides additional legal provisions for maintaining public order during a state of emergency. It grants the government powers to regulate public gatherings, impose curfews, and take other measures to ensure public safety.

1.3 National Security Council Act

The National Security Council Act outlines the roles and responsibilities of the National Security Council, which advises the President on matters of national security, including the declaration of a state of emergency.

2. Declaration of a State of Emergency

2.1 Conditions for Declaration

According to Article 58(1) of the Constitution of Kenya, a state of emergency may be declared only when:

The nation is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergencies.
The declaration is necessary to restore peace and order.

2.2 Procedure for Declaration

The procedure for declaring a state of emergency involves several steps:

Presidential Proclamation: The President issues a proclamation declaring a state of emergency.
Parliamentary Approval: The proclamation must be approved by the National Assembly within fourteen days, as stipulated in Article 58(2).
Duration: The initial declaration lasts for fourteen days but can be extended by the National Assembly for periods of up to two months at a time, as per Article 58(4).

3. Rights Affected During a State of Emergency

3.1 Rights that May Be Limited

During a state of emergency, certain rights and freedoms may be limited or suspended to ensure public safety and order. These include:

Freedom of Movement: The government may impose curfews and restrict movement to prevent disorder and ensure public safety.
Freedom of Assembly: Public gatherings and demonstrations may be regulated or prohibited to maintain public order.
Freedom of Expression: The government may regulate the media and other forms of communication to prevent the spread of misinformation and incitement to violence.
Right to Privacy: Surveillance and searches may be conducted without the usual legal safeguards to prevent threats to national security.

3.2 Non-Derogable Rights

Certain rights are non-derogable, meaning they cannot be suspended even during a state of emergency. According to Article 25 of the Constitution, these include:

Freedom from Torture and Cruel, Inhuman, or Degrading Treatment or Punishment.
Freedom from Slavery or Servitude.
The Right to a Fair Trial.
The Right to an Order of Habeas Corpus.

4. Government Powers During a State of Emergency

4.1 Enhanced Executive Powers

During a state of emergency, the executive branch of the government gains enhanced powers to ensure public safety and order. These powers include:

Imposition of Curfews: The government can impose curfews to restrict movement and prevent disorder.
Regulation of Public Gatherings: The government can regulate or prohibit public gatherings to maintain public order.
Control of Communication: The government can regulate the media and other forms of communication to prevent the spread of misinformation and incitement to violence.

4.2 Legislative Powers

The National Assembly plays a crucial role in overseeing the declaration and management of a state of emergency. Its powers include:

Approval of the Declaration: The National Assembly must approve the declaration of a state of emergency within fourteen days.
Extension of the Declaration: The National Assembly can extend the state of emergency for periods of up to two months at a time.
Oversight: The National Assembly exercises oversight over the executive's actions during a state of emergency to ensure they are necessary and proportionate.

4.3 Judicial Oversight

The judiciary also plays a critical role in ensuring that the government's actions during a state of emergency are lawful and respect fundamental rights. This includes:

Review of Executive Actions: The judiciary can review the executive's actions to ensure they comply with the Constitution and other laws.
Protection of Non-Derogable Rights: The judiciary ensures that non-derogable rights are protected even during a state of emergency.

Conclusion

A state of emergency in Kenya is a significant constitutional and legal event that has profound implications for the rights of citizens and the powers of the government. The declaration and management of a state of emergency are governed by various provisions in the Constitution of Kenya, 2010, and other relevant statutes. During a state of emergency, certain rights and freedoms may be limited or suspended to ensure public safety and order, while the government gains enhanced powers to manage the situation. However, certain rights are non-derogable and must be protected even during a state of emergency. The National Assembly and the judiciary play crucial roles in overseeing the executive's actions to ensure they are necessary, proportionate, and lawful.