Executive action limiting right of free association

This petition challenged the night curfew published as Legal Notice No. 36 - The Public Order (State Curfew) Order, 2020 (the curfew order) under the Public Order Act, Cap. 56 (the POA). The petitioners argued that the curfew order was unconstitutional for limiting rights such as the freedom of association, freedom of assembly and right to work; and failing to provide the period of the curfew as required under section 8 of the POA.

In considering the constitutionality of the POA, the court considered, inter alia:

This was a petition seeking an order to declare the government’s action to proscribe a political group called Mombasa Republican Council unconstitutional,  with regard to articles 36, 37, 38, 40 and 47 of the Constitution. The articles guarantee the rights to freedom of association, assembly and demonstration, as well as fair hearing, fair administrative action and political rights.

The court determined whether the action by the government banning the group was constitutionally reasonable and justifiable.

This was an appeal against a refusal by the High Court to grant the appellants leave to apply for judicial review.

The appellants had formed a society called Movement for the Restoration of the Barotseland Agreement (MOREBA). They applied to the Registrar of Societies for registration of MOREBA. The Registrar rejected the application. Their appeal to the Minister of Home Affairs was also rejected and they were ordered to cease operations in the name of MOREBA.