The Constitution of Kenya

Chapter V: Protection of Fundamental Rights and Freedoms of the Individual

[ Table of Contents | Chapter 4 | Chapter 6]

 
70
Fundamental Rights and Freedoms of the Individual.
71
Protection of Right to Life.
72
Protection of Right to Personal Liberty.
73
Protection from Slavery and Forced Labour.
74
Protection from inhuman Treatement.
75
Protection from Deprivation of Poverty.
76
Protection Against Arbitrary Search or Enty.
77
Provisions to Secure Protection of Law.
78
Protection of Freedom of Conscience.
79
Protection of Freedom of Expression.
80
Protection of Freedom of Assembly and Association.
81
Protection of Freedom of Movement.
82
Protection from Discrimination on grounds of race. etc.
83
Derogation from Fundamental Rights and Freedoms.
84
Enforcement of Protective Provisions.
85
Preservation of Public Security.
86
Interpretation and Savings.


     70, Whereas c~ery person in Kcnya is cntided to the
fundamental rights and freedoms of the individual. that is to
say, the right, wha.tever his race, tribe, place of origin or
residence or other local connexion. political opinions, colour.
creed or sex, but subject to respect for the rights and freedoms
of others and for the public interest, to each and all of the
following, namely-
   (a) life, liberty, security of the person and the protection
       of the law;
   (b) freedom of conscience, of expression and of assembly
   and association; and
   (c) protection for the privacy of his home and other pro-
       perty and from deprivation of property without
       compensation,
the provisions of this Chapter shall have effect for the purpose
of affording protection to those rights and freedoms subject
to such limitations of that protection as arc contained in those
provisions, being limitations designed to ensure that the enjoy-
ment of those rights and freedoms by any individual does
not prejudice the rights and freedoms of others or the public
interest.

     71. (1) No person shall be deprived of his life intention-
ally save in execution of the sentence of a court in respect of
a criminal offence under the law of Kenya of which he has
been convicted.
     (2) Without prejudice to any liability for a contravention
of any other law with respect to the use of force in those cases
hcrcinafter mentioned, a person shall not be regarded
as having been deprived of his life in contravention of this
.~cfion if he' dies as the result of the use of force to such an

extent as is reasonably iusti~able in the circumstances of the
caSe-
   (a) for the defence of any person from violence or for the
      defenee of property;
   (b) in order to effect a lawful arrest or to prevent the
      escape of a person lawfully detained;
   (c) for the purpose of suppressing a riot. insurrection or
      mutiny; or
   (d) in order to prevent the commission by that person of
      a or~n.~n~.,1 offlm~,
o~ if he d~es as it~e result o~ alawftd a~t o~ wsr.

     72. (1)No person shall be deprived of his personal
liberty save as may be authorized by law in any of the follow-
lag cases-
   (a) in execution of the sentence or order of a court.
       whether established for Kenya or some other coun-
       try. in respect of a criminal offence of which he has
       been convicted;
   (b) in execution of the order of the High Court or the
       Court of Appeal punishing him for contempt of
       that court or of another court or tribunal;
   (c) in execution of the order of a court made to secure
       the fulfilment of an obligation imposed on him by
       law;
   (d} for the purpose of bringing him before a court in
       execution of the order of a court;
   (e) upon reasonable suspicion of his having committed.
       or being about to commit. a criminal offenec under
       the law of Kenya;
   (fl in the ease of a person who has not attained the age
       of eighteen years. for the purpose of his education
       or welfare;
   (g) for the purpose of preventing the spread of an infee-
       tious or contagious disease:
   (h) in the case of a person who is. or is reasonably sus-
       pected to. be. of unsound mind. addicted to drugs or
       alcohol. or a vagrant. for the purpos~ of his care or
       treatment or the protection of the community;
   (t') for the purpose of preventing the unlawful entry of
       that person into Kenya. or for the purpose of effect-
       ing the expulsion. extradition or other lawful
       removal of that person h'om Kenya or for the
       purpos~ of restricting that person while he is being
      conveyed through Kenya in the course of his extradi-
      tion or removal as a convicted prisoner from one
      country to another; or
   {I) to such extent as may be necessary in the execution
       of a lawful order requiring that person to remain
       within a specified area within Kenya or prohibiting
       him from being within such an area. or to such
       extent as may be reasonably justifiable for the takin!l
       of proceedings against that person relating to the
       making of any such order, or to such extent as may
       be reasonably iusti~able for restraining that persop
       during a visit that he is permitted to make to a
       part of Kenya in which, in consequence of the
order, his presence would otherwise be unlawful.
(2) A person who is arrested or detained shall be
informed as soon as reasonably practicable. in a language that
he understands, of the reasons for his a~est or detention.
    (31 A person who is arrested or detained--
   (a) for the purpose of bringing him before a court in
     execution of the order of a court; or
   (b} upon reasonable suspicion of his having committed.
     or being about to commit, a criminal offence.
and who is not released, shall be brought before a court as
soon as is reasonably practicable, and where he is not brought
before a court within twenty-four hours of his arrest or from
~ commencevaeart of tfts dot~.tion, or wi~in fourteen days
~:~ his an'e~t or deten,~i~t wl~ere he is axregted or decmined upon
magon~ble su~picign of h~s ~,~i,ng c~em~ or ~bout to
ca~m3it an offenc~ pun~s~,~ble by dear. h, the buydram of proving
fi~at the p~son a~r~ted or demin~ has 'b~n brough~ before
a court as soon as is reasonably practicable shall rest upon
any person alleging that the provisions of this subsection have
been complied with.
     (4) Where a person is brought before a court in execu-
tion of the order of a court in any proceedings ol upon
suspicion of his having committed or being about to commit
an offence. he shall not be thereafter further held in custody in
connexion with those proceedings or that offence save upon
the order of a court.
     (5) If a person arrested or detained as mentioned in
subsection (3) (b) is not tried within a reasonable time. then,
without preiudic~ to afiy fuRher proceedings that may be
    t-~m,,ph~ against 'him, he shall, u~less he ~s dmry~d with an
off~nce Im,nishable by death, be fel~sed ei. fi~er ~tiofially
or upoa re'asomble coediJio~s, {~iŤludi~g kt pa~cu]~r
such conditions as are reasonably necessary to ensure that he
appears at a later date for trial or for proceedings preliminary
to trial.
     (6) A person who is unlawfully arrested or detained
by another person shall be entitled to compensation therefor
kom that other person.
73. (1) No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced labour.
(3) For the purposes of this section "forced labour"
does not include--
   (a)Iabour required in consequence of the sentence
      or order of a court;,
   ib)labour required of a person while he is lawfully
      detained that. though not required in consequence
      of the sentence or order of a court. is reasonably
      necessary in the interests of hygiene or for the main-
      tenance of the place at which he is detained;
   (c) labour required of a member of a disciplined force
      in pursuance of his duties as such or. in the case of
      a person who has conscientious objections to service
      as a member of an armed force, labour that that
      person is required by law to perform in place of
      such service;
   (d)labour required during a period when Kenya
      is at war or an order under section 85 is in force or
      in the event of any other emergency or calamity that
      threatens the life or well-being of .the community, to
      the extent that the requiring of the labour is reason-
      ably justifiable, in the circumstances of a situation
      arising or existing during that period or as a result
      of that other emergency or calamity, for the purpose
      of dealing with that situation; or
(e)labour reasonably required as part of reasonable
   and normal communal or other civic obligations.
   74. (1)No person shall be subject to torture or to
   inhuman or degrading punishment or other treatment.
     (2) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in centraven-
tion of this section to the extent that the law in question
authorizes the infliction of any description of punishment that
was lawful in Kenya on llth December, 1963.
    75. (1) No property of any description shall be compul-
sorily taken possession of, and no interest in or fight over
property of any description shall be compulsorily acquired.
except where the following conditions are satisfied-   (a) the taking of possession or acquisition is necessary in
     the interests of alefence, public safety, public order.
     public morality, public health, town and country
     planning or the development or utilization of pro-
      perry so as to promote the public benefit; and
   {b) the necessity therefor is such as to afford reasonable
       justification for the causing of hardship that may
       result to any person having an interest in or right
       over the property; and
   (c} provision is made by a law applicable to that taking
       of possession or acquisition for the prompt payment
       of full compensation.

     (2) Every person having an interest or right in or over
property which is compulsorily taken possession of or whose
interest in or right over any property is compulsorily acquired
shall have a right of direct access to the High Court for--
   (a) the determination of his interest or right, the legality
       of the taking of possession or acquisition of the
       property, interest or right, and the amount of any
       compensation to which he is entitled; and
(b) the purpose of obtaining prompt payment of that
    compensation:
    Provided that if Parliament so provides in relation to a
    matter referred to in paragraph (a) the right of access shall
    be by way of appeal {exercisable as of right at the instance of
    the person having the right or interest in the property) from
    a tribunal or authority, other than the High Court, having
    iurisdiction under any law to determine that matter.

     (3) The Chief Justice may make rules with respect to the
practice and procedure of the High Court or any other tribunal
or authority in relation to the jurisdiction conferred on the
High Court by subsection (2) or exercisable by the other
tribunal or authority for the purposes of that subsection (in-
eluding rules with respect to the time within which applications
or appeals to the High Court or applications to the other
tribunal or authority may be brought).

   (4) and (5) {Deleted by 13 of 1977, s. 3.)

      (6) Nothing contained in or done under the authority of
 any law shall be held to be inconsistent with or in centraven-
 tion of subsection (1) or (2)--
   (a) to the extent that the law in question makes provision


Rev. 19981

Constitution o] Kenya

47

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  for the taking of possession or acquisition of
  property-
   (i) in satisfaction of any tax, duty. rate. cess or other
     impost:
   (ii} by way of penalty for breach of the law, whethe1
      under civil process or after conviction of a
      criminal offence under the law of Kenya;
   (iii} as an incident of a lease, tenancy. mortgage.
     charge, bill of sale, pledge or contract;
   (iv) in the execution of judgments or orders of a
       court in proceedings for the determination of
       civil rights or obligations;
   (v) in circumstances where it is reasonably necessary
      so to do became the property is in a dangerous
      state or injurious to the health of human beings.
      animals or plants:
   {vii in consequence of any law with respect to the
     limitation of actions; or
  (vii) for so long only as may be necessary for the
      purposes of an examination, investigation, trial
      or inquiry or. in the case of land, for the pur-
      poses of the carrying out thereon of work of
      soil conservation or the conservation of other
      natural resources or work relating to agricul-
      tural development or improvement (being work
      relating to the development or improvement
      that the owner or occupier of the land has been
      required. and has without reasonable excuse
      refused or failed. to carry out).
      and except so far as that provision or, as the case
      may be. the thing doue under the authority thereof
      is shown not to be reasonably justifiable in a
      democratic society; or
(b) to the extent that the law in question makes provision
   for the tak'mg of possession or acquisition of---
   (i) enemy property;
   (ii) property of a deceas~ person, a person of un-
      sound mind or a person who has not attained
      the age of eighteen years, for the purpose of its
      administration for the benefit of the persons
      entitled to the beneficial interest therein:
   (iii) property of a person adjudged bankrupt or a
       body corporate in liquidation, for the purpose
       of its administration for the benefit of the        creditors of the bankrupt or body corporate
        and. subject thereto. for the benefit of other
        persons entitled to the beneficial interest in the
        property; or
     fly) property subject to a trust, for the purpose of
         vesting the property in persons appointed as
         trustees under lhe instrument creating .the trust
         or by a court or, by order of a court. for the
         purpose of giving effect to the trust.
    (7) Nothing contained in or done under the authority of
an Act of Parliament shall be held to be inconsistent with or
in contravention of this section to the extent that the Act in
question makes provision for the compulsory taking possession
of property or the compulsory acquisition of any interest
in or fight over property where that property, interest or right
is vested in a body corporate, established by law for public
purposes, in which no moneys have been invested other than
moneys provided by Parliament.

    76. (1) Except with his own consent, no person shall be
subjected to the search of his person or his property or the
entry by others on his premises.

     (2) Nothing contained in or done under the authority of
 any law shall be held to be inconsistent with or in contra-
 vention of this section to the extent that the law in questio~
 makes provision-
   (a) that is reasonably required in the interests of defence.
       public safety. public order, public morality, public
       health. town and country planning. the development
       and utilization of mineral resources, or the develop-
       ment or utilization of any other property in such a
       manner as to promote the public benefit:
   (b) that is reasonably required for the purpose of promot-
       ing the rights or freedoms of other persons:
    {c) that authorizes an officer or agent of the Government
        of Kenya, or of a local government authority, or of
        a body corporate established by law for public
        purposes, to enter on the premises of a person in
        order to inspect those premises or anything thereon
        for the purpose of a tax. rate or due or in order
        to carry out work connected with property that
        is lawfully on those premises and that belongs to
        that Government. authority or body corporate. as
        the cas~ may be: or (d) that authorizes, for the purpose of enforcing the
    judgment or order of a court in civil proceedings,
    the entry upon premises by order of a court,
    and except so far as that provision or, as the case may be,
    anything done under the authority thereof is shown not to be
    reasonably justifiable in a democratic society.

     77. (1) If a person is charged with a criminal offence,
then, unless the charge is withdrawn, the case shall be
afforded a fair hearing within a reasonable time by an inde-
pendent and impartial court established by law.
   (2) Every person who is charged with a criminal offence--
   (a) shall be presumed to be innocent until he is proved
   or has pleaded guilty;
   (b) shall be informed as soon as reasonably practicable.
       in a language that he understands and in detail. of
       the namm of the olthsnoe wifft which he is charged;
   {c) shall be given adequate time and facilities for the
       preparation of his defence;
   (d) shall be permitted to defend himself bdore the court
       in person or by a legal representative of his own
       choice;
   (e) shall be afforded facilities to examine in person or by
       his legal representative the witnesses called by the
       prosecution before the court and to obtain the
       attendance and carry out the examination of wit-
       nesses to testify on his behalf before the court on the
       same conditions as those applying to witnesses callexi
       by the prosecution; and
   (D shall be permitted to have without payment the assist-
       ance of an interpreter if he cannot understand the
       language used at the trial of the charge,
and except with his own consent the trial shall not take place
in his absence unless he so conducts himself as to render
the continuance of .the proceedings in his presence imprac-
ticable and the court has offered him to be removed and the
trial to proceed in his absence.
     {3) When a person is tried for a criminal offence, the
accused person or a person authorized by him in that behalf
shall, if he so requires and subject to payment of such reason-
able fee as may be prescribed by law, be given within a
reasonable time after judgment a copy for the use d the
accused person of any record of the proceedings made by or
on behalf of the court.

   (4) No person shall be held to be guilty of a criminal
offonce on account of an act or omission that did not, at
the time it took place, constitute such an offonce, and no
penalty shall be imposed for a criminal offonce that is
severer in degree or description than the maximum penalty
that might have been imposed for that offonce at the time
when it was committed.

     (5) No person who shows that he has been tried by a
competent court for a criminal offonce and either convicted
or acquitted shall again be tried for that offonce or for any
other criminal offonce of which he could have been convicted
at the trial of that oftenco, save upon the order of a superior
court in the course of appeal or review proceedings relating
to the conviction or acquittal.

    (6) No person shall be tried for a criminal offonce if he
shows 'that he has been pardoned for that oftenco.
    {7) No person who is tried for a criminal offonce shall be
compelled to give evidence at the trial.

    (8) No person shall be convicted of a criminal offonce
unless that offonce is defined, and the penalty therefor is
prescribed, in a written law:
    Provided that nothing in this subsection shall prevent a
court from punishing a person for contempt notwithstanding
that the act or omission constituting the contempt is not
defined in a written law and the penalty therefor is not so
prescribed.

     (9) A court or other adjudicating authority prescribed
by law for the determination of the existence or extent of a
civil right or obligation shall be established by law and shall
be independent and impartial; and where proceedings for
such a determination are instituted by a person before such
a court or other adjudicating authority, the ease shall be given
a fair hearing within a reasonable time.

    (I0) Except with the agreement of all the parties thereto,
all proceedings of every court and proceedings for the deter-
mination of the existence or extent of any civil right or
obligation before any other adjudicating authority, ineluding
the announcement of the decision of the court or other
authority, shall be held in public.

    (Ill Nothing in subseotion (10) 8hall prevent the court or
other adjudicating authority from excluding from the proceed-
ings persons other than the parties thereto and their legal


representatives to such extent as the court or other authority-
(a) may by law be empowered to do and may consider
necessary or expedient in circumstances where pub-
licity would prejudice the interests of justice or in
interlocutory proceedings or tn the interests of public
morality, the welfare of persons under the age of
eighteen years or the protection of the private lives
of persons concerned in the proceedings: or
(b) may by law be empowered or required to do in the
    interests of alefence. public safety or public order-
    (12) Nothing contained in or done under the authority
    of any law shall be held to be inconsistent with or in contra-
    vention of-
   (a) subsection (2) (a) to the extent that the law in question
       imposes upon a person charged with a c~mktal
       offence the burden of proving particular facts;
   (b) subsection (2) (e) to the extent that the law in question
       imposes conditions that must be satisfied if witnesses
       called ~o testify on beha!~ of an accused pewson a,~e
       to be paid their expenses out of public funds; or
   (c) subsection (5) to the exten, t that the law in question
       authorizes a court to try a member of a disciplined
       force for a criminal otlence notwithstanding a trial
       and conviction or acquittal of that member under the
       disciplinary law of that force. so. however, that a
       court so trying such a member and convicting him
       shall in sentencing him to any punishment take into
       account any punishment awarded him under that
       disciplinary law.
     (13) In the case of any person who is held in lawful
detention, subsection (1). paragraphs (d) and (e) of subsection
(2) and subsection (3) shall not apply in relation to his trial
for a c'.nminal offence under the law regulating the discipline
of persons held in lawful detention.
     (14) Nothing contained in subsection (2) (d) shall be con-
st. rued as entitling a person to legal representation at public
expense.
     (15) In this section "criminal offence" means a criminal
offence under the law of Kenya.

    78. (1) Except with his own consent. no person shall be
hindered in the enjoyment of his freedom of conscience. and
for the purposes of this section that freedom includes free-
dom of thought and of religion. freedom to change his religion
or belief, and freedom, 'either alone or in community with
others, and both in public and in private, to manifest and
propagate his religion or belief in worship, teaching, practice
and observance.
     (2) Every religious community shall be entitled, at its
own expense, to establish and maintain places of education
and to manage a place of education which it wholly main-
tains: and no such community shall be prevented from provid-
ing religious instruction for persons of that community in the
course of any education provided at a place of education
which it wholly maintains or in the course of any education
which it otherwise provides.
     (3) Except with his own consent (or, if he is a minor,
the consent of his guardian), no person attending a place of
education shall be required to. receive religious instruction or
to take part in or attend a religious ceremony or observance
if 'lhat instruction, ceremony or observance relates to a religion
other than his own.
     (4) No person shall be compelled to take an oath which
is contrary to his religion or belief or to take an oath in a
manner which is contrary to his religion Or belief.
     {5) ;Nothing contained in or done under: the authority of
any law shall be held :to be inconsistent with or in contraven-
tion of this section to the extent that the law in question makes
provis!on which is reasonably required-
   (a) in the inter~ts of defence, public safety, public order,
   public morality or public health; or
   (b~ for the purpose of protecting the rights and freedoms
       of other persons, including the fight to observe and
       ˙ practise a religion without˙ the unsolicited inter-
       vention of members of another religion,..
and except so far as that provision or, as the case˙ may be,
the thing done under the authority thereof is shown not to be
reasonably justifiable in a democratic society.
     (6) References in this section ton religion shall be con-
strued as including references to 'a religious denomination, and
cognate expressions shall be construed accordingly.

     79, (1) Except with his own consent, no person shall be
hindered in the enioyment of his freedom of expression, that
is to say, freedom to hold opinions without interference, free-
dom to receive ideas and information without interference,
freedom to communicate ideas and information' without inter-
fetenee (whether the communication be to the public generally


or to any person or class of persons) and freedom front inter-
ference with his correspondence.
     (2) Nothing contained in ~r .done trader :the au,th.ority of
any law shall be held to be inconsistent with or in contra-
vention of this section to the extent that the law in question
makes provision-
   (a) titat is reasonably required in the interests of defence,
       public safety. public order. public morality or public
       health;
   (b) that is reasonably required for the purpose of pro-
       tecting the reputations. rights and freedoms of other
       persons or the private lives of persons concerned in
       legal proceedings. preventing the disclosure of
       information received in confidence. maintaining the
       authority and independence of the courts or regulat-
       ing the technical administration or the technical
       operation of telephony. telegraphy. posts. wireless
       broadcasting or television; or
   {c) that imposes. restrictions upon .public officers or upon
       persons in the service of a local government
       authority. and except so far as that provision or. as
       the case may be. the thing done under the authority
       thereof is shown not to be reasonably justifiable in
       a democratic society.
    80. (I) Except with his own Consent, no person shall be
hindered in the enjoyment of his freedom of. assembly and
association, that is to say. his fight to assemble freely and
associate with other persons and in particular to form or
belong to trade unions or other associations for the protection
of his interests.
     {2) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in contraven-
tion of this section to the extent that the law' in question makes
provision-
   (a) that is reasonably required in the interests of defence,
       public safety, public order, publiC morality or public
       health;
   (b) that is reasonably required for the purpose of protect-
       ing the .rights or freedoms of other persons;
  '(c) that imposes restrictions upon public officers, members
      of a disciplined farce, or persons in the service of
      a local government authority; .or
   {d) for the .registration .of:trade unions'and associations
       of trade unions in a register established by' or under
   (c) for the imposition of restrictions. by order of a court.
       on the movement or residence within Kenya of any
       person or on any person's right to leave Kenya either
       in consequence of his having been found guilty of a
       criminal offence under the law of Kenya or for the
       purpose of ensuring that he appears before a court
       at a later date for trial of such a criminal offence or
       for proceedings preliminary to trial or for proceed-
       ings relating to his extradition or lawful removal
       from Kenya;
   {d} for the imposition of restrietiong; on the acquisition
       or use by any person of land or other property in
       Kenya;
   (el for the imposition of restrictions upon the movement
       or residence within Kenya or on the right to leave
       Kenya of public officers or of members of a
       disciplined force;
   (f~ for the removal of a person from Kenya to be tried or
       punished in some other country for a criminal offence
       under the law of that other country or to undergo
       imprisonment in some other country in execution of
       the sentence of a court in respect of a criminal
       offence under the law of Kenya of which he has been
       convicted: or
   {g) for the imposition of restrictions on the right of any
       person to leave Kenya that are reasonably required
       in order to secure the ful~lment of any obligations
       imposed on that person by law and except so far as
     -'- that provision or. as the case may be. the thing done
          under the authority thereof. is shown not ,to be
          reasonably justifiable in a democratic society.
     (4) If a person whose freedom of movement has been
restricted by virtue of a provision referred to in sub-
section (3) {a) so requests at any time during the period of
that restriction not earlier than three months after the order
was made or three months after he last made th~ request,
as the case may be. his case shall be reviewed by an lade-
pendent and impartial tribunal presided over by a person
appointed by the President from among persons qualified to
be appointed as a judge of the High Court.
     (5) On a review by a tribunal in pursuance of sub-
section (4) of the case of a person whose freedom of
movement has been restricted. the tribunal may make recom-
mendations concerning the necessity or expediency of
continuing that restriction to the authority by whom it was
'       persons of any other such description. is reasonably
       justifiable in a democratic society.
     {51 Nothing contained in any law shall be held to be
inconsistent with or in contravention of subsection (l) to the
extent that it makes provision with respect to standards or
qualifications (not being standards or qualifications specifi-
cally relating to race. tribe, place of origin or residence or
other local connexion, political opinion, colour or creed) to
be required of a person who is appointed to an office in
the public service, in a disciplined force, in the service of a
local government authority or in a body corporate established
by any law for public purposes.
   (6) Subsection (2) shall not apply to-
   (a) anything which is expressly or by necessary implica-
       tion authorized to be done by a provision of law
       referred to in subsection (4): or
   {b) the giving or withholding of consent to a transaction
       in agricultural land by any body or authority estab-
       lished by or under any law for the purpose o[
       controlling transactions in agricultural land.
     (7) Subject to subsection {8), no person shall be treated
in a discriminatory manner in respect of access to shops,
hotels. lodging-houses, public restaurants, eating houses, beer
halls or places of public entertainment or in respect of access
to places of public resort maintained wholly or partly out of
public funds or dedicated to the use of the general public.
     (8) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in contraven-
tion of this section to the extent that the law in question
-':~:kes provision whereby persons of a descriptkm mentioned
in subsection (3) may be subjected to a restriction on the
rights and freedoms guarameat by sections 76, 78, 79, 80 and
81, being a restriotion authorized by section 76 (2), 78 (5),
79 (2). 80 (2), or paragraph (a) or (b) of section 8I (3).
     (9) Nothing in subsection (2) shall affect any discretion
relating to the institution, conduct or discontinuance of civil
or criminal proceedings in a court that is vested in a person
by or under this Constitution or any other law.
    83. (l) Nothing contained in or done under the authority
of an Act of Parliament shall be held to be inconsistent with
or in contravention of section 72. 76, 79. 80. 81 or 82 when
Kenya is at war. and nothing contained in or done under the
authority of any provision of Part III of the Preservation of
Public Security Act shall be held to be inconsistent with or in
contravention of those sections of this Constitution when and
in so far as the provision is in operation by virtue of an order
made under section 85.

     (2} Where a person is detained by virtue of a law refer-
red to in subsection (1) the following provisions shall apply-

   (a) he shall. as soon as reasonably practicable and in any
       case not more than five days after the commence-
       ment of his detention, be furnished with a statement
       in writing in a language that he understands specify-
       ing in detail the grounds upon which he is detained:

   (b) nqt more tha~ fourteen days after the co. mmencemem
       of his detention. a notification shall be published in
       the Kenya Gazette stating that he has been detained
       and giving particulars of the provision of law under
       which his doten,tkm is authorized;

   (c) not more than one month after the commencement of
       his detention and thereafter during his detention at
       intervals of not more than six months. his case shall
       be reviewed by an independent and impartial tribunal
       established by law and presided over by a person
       appointed by the President from among persons
       qualified to be appointed as a judge of the High
       Court;
   (d) he shall be afforded reasonable facilities to consult a
       legal representative of his own choice who shall be
       permitted to make representations to the tribunal
       appointed for the review of the case of the detained
       person; and

   (e) at the heating of his case by the tribunal 'appointed
       for the review of his case he shall be permitted to
       appear in person or by a legal representative of his
       own choice.

     (3) On a review by a tribunal in pursuance of this
section of the case of a detained person. the tribunal may
make recommendations concerning the necessity or expedi-
ency of continuing his detention to the authority by which it


was ordered but. unless it is otherwise provided by law, that
authority shall not be obliged to act in accordance with any
such recommendations.
     (4) Nothing contained in subsection (2) (d) or (e) shall be
construed as entitling a person to legal representation at public
expense.

     84. (1)Subject to subsection (6). if a person alleges
that any of the provisions of sections 70 to 83 (inclusive) has
been, is being or is likely to be contravened in relation to him
(or, in the case of a person who is detained, if another
person alleges a contravention in relation to the detained
person). then. without prejudice to any other action with
respect to the same matter which is lawfully available. that
person (or that other person) may apply to the High Court for
redress.
   (2) The High Court shall have original jurisdiction-
   (a) to hear and determine an application made by a
      person in pursuance of subsection (I};
(b) to determine any question arising in the case of a
    person which is referred to it in pursuance of sub
    section (3).
    and may make such orders. issue such writs and give such
    directions as it may consider appropriate for the purpose of
    enforcing or securing the enforcemerrt of any of the provisions
    of sections 70 to 83 finelusive).
     (3) If in proceedings in a subordinate court a ques-
tion arises as to the contravention of any of the provisions
of sections 70 to 83 (inclusive), the person presiding in that
court may, and shall if any party to the proceedings so
requests, refer the question to the High Court unless. in his
opinion, the raising of the question is merely frivolous and
vexatious.
     (4) Where a question is referred to the High Court in
pursuance of subsection (3). the High Court shall give its
decision upon the question and the court in which the question
arose shall dispose of the case in accordance with that
decision.
   (5') Parliament-
   (a) my o0t~ upon !the High Oou~t ~uoh powers ~n
      att'clttia~ to th~se c~w~orred by ~ seOtioqt as may
      appeaz ,to l~ ~ecessary or cl~"a, ble for ~e pttrlx~
      of enaUfm. g ..rt~t Oourt, more effec, tivety, to exercise
      rlae judsdicli~trt confen~ upon it by rlis scion; and
   (b) sha'l,l make p.t, ovisi'on--
      (i) for ~t~e .rendering of lina4~ciall a~i~tance 'to any
         indigen,t ~ittizen of Kenya Where 'his ~:igl~t unde~r
         this Cha, pter has ,been i,n~h. ir~ged or wi.t'h a .clew
         .to ena~l~tbng .l~irn enga,ge .the services of a~n advo-
         cate to prosecuCe his claim; a..'nd
      (Bi) 'For e'nsu,vi,ng :th'at a~.logations of infringemen't of
          such rigt'/ts a~re :su,bstan:ti,a~l a,nd ,t'he requ.kernenlt
          or need for financial or ,legal a;id lis real.
     (6) The Chief Justice may make rules with respect to the
practice and procedure of the High Court in relation to the
jurisdiction and powers conferred on it by or under this section
(including rules with respect to the time within which applica-
tions may be brought and references shall be made to the
High Court).
    (7) A person aggrieved by .the determination of the High
Court under this section may appeal .to 'the Cou~t of Appeal
as of righ't.
    85. (1) Subject to this section. the President may at any
time. by order published in the Kenya Gazette. bring into
operation. generally or in any part of Kenya. Part III of the
Preser%,ation of Public Security Act or any of the provisions
of that Part of that Act.
    (2) An order made under this section shall cease to have
effect on the expiration of the period of twenty-eight days
commencing with the day on which the order is made. unless
before the expiration of that period it has been approved by a
resolution of the National Assembly: but in reckoning any
period of twenty-eight days for the purposes of this subsection
no account shall be taken of any time during which Parliament
is dissolved.
     (3) An order made under this section may at any time
be revoked by the President by an order published in the
Kenya Gazette.
     (4) An order made under this section and approved by a
resolution of the National Assembly in accordance with sub-
section (2) may at any time be revoked by a resolution of the
Assembly supported by a majority of all the member~ of the
Assembly {excluding the ex officio members).'
    (5) Whenever the election of the: President results in a
change in the holder of that office an order made under this
section and in force immediately before the day on which the
President'assumes office shall :cease to have-effect on the
expiration of seven days commencing with that day. '


     (6) The expiry or revocation of an order made under
this sectio.,~ shall be without prejudice to the validity of any-
thing previously done under the order or to the making of a
new order.

. 61

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i

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-: T::~

    86. (1) In this Chapter, except where the context other-
wise requires--
     "contravention". in relation to a requirement, includes
a failure to comply with that requirement, and cognate expres-
sions shall be construed accordingly:

    "court" means any cour. t having jurisdiction in Kenya
other than a court established by a disciplinary law, but
includes, in sections 71 and 73, a court established by a
disciplinary law;

    "disciplinary law" means a law regulating the discipline
of a disciplined force;

   "disciplined force" means-
   (a) any of the armed forces;
   (b) a police force;

   (c) a prison service; or

   (d) the National Youth Service;

    "legal representative" means a person entitled to practise
as an advocate in Kenya; and

    "member". in relation to a disciplined force, includes any
person whb. tinder the law regulating the discipline of that
force, is subject to that discipline.

     i21 In relation to a person who is a member of a
disciplined force raised under any law in force in Kenya,
nothing contained in or done under the authority of the discip-
Unary law' of that force shall be held to be inconsistent with
or in contravention of any of the provisions of this Chapter
other than sections 71, 73 and 74.

     (3) In relation to a person who is a member of a dis-
ciplined force raised otherwise than as aforesaid and lawfully
present in Kenya, nothing contained in or done under the
authority˙ of the disciplinary law of that force shall be held to
be inconsistent with or in contravention of an3?'of the
provisions of this Chapter.


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