High court has overruled a decision by the Executive requiring Lecturers to get clearance from Statehouse when travelling outside Kenya
Court ruled that the decision is in inconsistent with the constitution.
Justice Chacha Mwita in his decision said the right of movement is one of those fundamental rights and freedoms guaranteed by the constitution and infringes petitioner’s right to movement.
“A declaration is hereby issued that the letter reference No SH/1/6/XIV dated 13 September 2017 by the 2 respondent addressed to all cabinet secretaries, the first respondent and all principal secretaries, was issued in contravention of Article 39, as read with Article 10, 19,,20(1),(2), 21(1) and 24(1) of the constitution in so far as it relates to the petitioner’s members fundamental right to movement guaranteed under Article 39(1) and (2) and it is null and void” Ruled Judge Mwita.
‘It is not a right granted by the state. The state duty is to respect, protect and promote fundamental rights and freedoms in the BILL of Rights’’ said court.
The judge in his judgement ruled that, the judgement is only apply to University Academic Staff Union(UASU) and it members.
UASU through Senior Counsel Gitobu Imanyara had argued that its members who are in the academia are by very nature of their duties often required to travel outside the country to participate in regional and international collaborative research workshops , specialized conferences and seminars.
They further argued that the government did not consult them before reaching the said decision adding that the rules of natural justice was violated.
‘The decision was made whimsically and arbitrarily thus discriminates against the petitioners members some d who m are professors, scholars , lectures , teachers as well as researchers in public as well as private institution who may not be affected by the letter yet there is no distinctions in teaching requirements across universities’ ‘argued UASU.
They further argued that the circular was not issued in good faith and that it is neither reasonable nor justifiable in an open and democratic society.
The government on its part defended the move saying that the president is the head of state and therefore he has powers under the constitution to direct and coordinate functions of ministries and government departments.
The court was also told that the government acted in good faith and in accordance with its mandate.
Through lawyer Gitobu Imanyara the Union asked the court to restrain Chief of Staff Joseph Kinyua from enforcing any directives pursuant to the said letter pending hearing and determination of the petition.
On 13 September this year the attorney general signed ,published and disseminated a letter / circular being bearing reference NO SH/1/6XIV addressed to all cabinet secretaries and all principals Secretaries with directives to ” circulate to all parastatals.
“RE: TRAVEL OUTSIDE THE COUNTRY-This is to notify you it has been decided, until further advised otherwise, no government official will travel outside the country without clearance by The President. For avoidance of any doubt , the officials in reference include Cabinet Secretaries , Principal Secretaries and Officers in Ministries, Chief Executive Officers of Parastatals and their offices and Board of Directors of parastatals” state the letter.
The union argues the two circulars all members of the petitioners union and who are Professors , lecturers and researchers have been immediately banned from travelling out of the country.
