A petition by the parents of 28 students killed in the Garissa University College terror attack five years ago will be heard by more than one judge.
High Court Judge James Makau issued the order on Wednesday in the case in which the parents sued the government for negligence in security
Through a human rights advocacy group called Kituo Cha Sheria and lawyer John Khaminwa, they argued that the petition raised new issues on terrorism, human rights and national security.
The judge agreed that the petitioners raised weighty legal issues and several questions regarding national security and the law.
Following the ruling, Chief Justice David Maraga will form a bench of at least three judges to hear the case.
Among the issues to be determined are gross violation of human rights, particularly the rights to life, education, information and security during a terror attack, and the extent of remedies available in the circumstances.
Justice Makau said the petition also raised the novel question of whether the State is obligated to provide security during a terror attack and whether there are qualifications for obligation to apply.
Further, the petitioners raised the issue of whether there is need for an approval from Parliament and whether a terror attack meets the threshold of unrest and instability as contemplated in law.
“I note that the identified issues have not been determined by any other court in Kenya as this is a unique aspect of national security, not one that has been determined by the courts in the past,” Justice Makau said.
“The circumstances of this case are unique, being the first of its kind and touching on terrorism and no doubt, the same meets the criteria set for certification as raising substantial questions of the law.”
Kituo cha Sheria raised the legal questions following reports that security agencies delayed to respond to the April 2, 2015 attack by terror group Al-Shabaab.
The legal aid organisation also claimed that the government ignored several useful intelligence pointers on impeding terrorist attacks targeting learning institutions in Garissa.
It also said that when security officers were flown to the university, there was no clear command structure, leading to a long siege and the loss of 148 lives.
Justice Makau also directed the Independent Policing and Oversight Authority (Ipoa) and the Commission on Administrative Justice (CAJ) to release key investigative reports touching on the attack.
“The petitioners have demonstrated that there is a greater public interest in disclosure of information in ensuring they obtain a remedy from the court and further in promoting accountability by public bodies and servants,” said Justice Makau.
He found that national security would not be prejudiced if the reports were made available as in any case the court can apply various measures to ensure protective disclosure.
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