THE SEVENTH CONSTITUTIONAL LAW MOOT COURT COMPETITION

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

15TH JULY 2016

SUPREME COURT OF NYAKE

IN THE MATTER BETWEEN

MOHAMMED AFAR
AND
REPUBLIC OF NYAKE

MEMORIAL FOR APPLICANT

TABLE OF CONTENTS
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2.
3.
4.
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6.
7.
8.

LIST OF AUTHORITIES..
LIST OF ABBREVIATIONS
STATEMENT OF JURISDICTION..
ADMISSIBILITY...
STATEMENT OF FACTS.
ISSUES
SUMMARY OF ARGUMENTS
SUBSTANTIVE ARGUMENTS...

MERITS

1. THE LEGALITY OF APPELANTS ARREST

RESPONDENT STATE ACTED IN ACCORDANCE WITHIN THE LAW IN
ADDRESSING CHAPTER 4 ARTICLE 24 OF THE CONSTITUTION
The respondent submits that article 24 f the constitution which states that a right or fundamental
freedom in the Bill of Rights shall not be limited except by law. The limitation ought to be
reasonable and justifiable in an open and democratic society based on human dignity, equality
and freedom. However, the respondent State submits that this right can be limited. The grounds
are provided under article 24(d) of constitution which stipulates that there is need to ensure
enjoyment of rights and fundamental freedom of an individual does not prejudice the rights and
fundamental freedom of others.
The respondent contains that the restriction on Mr. Mohammed Afar's right to privacy, freedom
and security of person, his rights as a person from custody and freedom from torture is well
provided by law. The respondent states that it was a necessity for a restriction on freedom of
right to privacy and security of persons on Mr. Mohammed Afar since national security was at
stake. It was therefore necessary for the state of NYAKE to engage in a delicate balancing act of
choosing whether to protect an individual's right as against those of the state. Hence, the
respondent submits that the action of the state were proportionate to risk post by Mohammed
Afar.
The respondents submits that Mr. Mohammed's decision to appeal to the supreme for the second
time resulted to a contempt of court. Therefore, his claim for locus standi could not be
admissible. In view of the present case, the respondent avers that it was necessary to limit Mr.

Mohammed's right to privacy and security of person which were likely to fuel further violent
protest which would intern grievously affect the state.
In the case Le Roux v Minister of safety and security, the supreme court held that a person's
fundamental right may be limited if he/she is acting in a way to harm himself or other persons.
Mr. Mohammed's conduct amounted to a threat to the citizens life and hence the respondents
action were hailed at prevailing national insecurity.

2. PRESERVING AN ERROR FOR APPEAL

In order for a defendant to appeal a legal error made at trial, the prosecution must have objected
to the error on the record. The objection can be made verbally or through a written motion and
can be done both before or during the trial. The basic idea behind objecting and therefore
preserving the error is that appellate court are meant to fix the error of the trial court, hence the
trial court must be given opportunity to fix the error themselves.
In interpreting the equivalent provision of the interim constitution, judge O'Regan J marked in
the case of Ralekwa v Minister of safety and security,
' In my view, freedom has two interrelated constitutional aspects : the first is a
procedural aspect which requires that no one be deprived off physical freedom unless fair and
lawful procedures have been followed. The other constitutional aspect of freedom lies in a
recognition that, in certain circumstances even when fair and lawful procedure have been
followed......................... the deprivation of freedom will not be constitutional, because the
grounds upon which freedom has been curtailed are unacceptable.'

REFERENCES
Article 24(d) of the constitution of NYAKE ( similar if not the same as that of the Republil of
Kenya)
Bill of Rights chapter 4

LIST OF AUTHORITIES
INTERNATIONAL TREATIES
1. International Covenant on Civil and Political rights (1966) officially registered on 23rd
March 1776.
2. International Covenant on Economic, Social and Cultural Rights
3. Universal Declaration on Human Rights; adopted on 1948.
4. Charter on the United Nations and the Statute for International Court Justice (1946)
5. African Charter on Human and People Rights; adopted at Nairobi on 27 th of June 1981
and entered into force on October 21st 1986.
6. OAU Convention and the Prevention and Combating Terrorism (1999) adopted at Algiers
on 14th July 1999.
7. Non- Aggression & Common Defense Pact(2005)

DOMESTIC LAW
1.
2.
3.
4.
5.
6.

The Constitution of Kenya 2010.

Prevention of Terrorism Act, 2012.
Criminal Procedure Code, CAP 75 Laws of Kenya.
The Penal Code, CAP 65 Laws of Kenya.
The Evidence Act CAP.
Supreme Court Act.

CASE LAW
1. Ralekwa v Minister of Safety and Security ( )
2. Le Roux v Minister of safety and security

BOOKS AND ARTICLES

LIST OF ABBREVIATIONS
1.
2.
3.
4.
5.
6.

ICCPR.International Covenant on Civil & Political Rights.

ICESC.International Covenant on Economic, Social & Cultural Rights.
UDHR.Universal Declaration on Human Rights.
ACHPR.African Charter on Human & People Rights.
UN.United Nations.
AU.African Union.

STATEMENT OF JURISDICTION
1. The Respondents submit that the terms of article 163 subsection 3(b) of the Constitution
of Kenya 2010 on supreme court jurisdiction this court should decide at its own
discretion this matter at hand.

ADMISSIBILITY
Locus standi;
2.
Exhaustion of local remedies

3. Respondents submit that applicant fails to meet the standards set for admissibility as per
the Evidence Act CAPby not exhausting local remedies; he did not apply for a
habeas corpus before proceeding to superior court, he .

STATEMENTS OF FACT
4. Republic of Nyake is neighbored by Ilamos and Ekatome states with which theyve had a
history of business and diplomatic relations. Nyake is guided by the constitution which is
the supreme law as well as other laws. It is a member of the UN and is part of several
treaties such as ICCPR, ACHRPR and many others. Tourism is one of the main sources
of income of the country.
5. It was affected by a military revolution in Ilamos in 2004and there was a UN meeting to
implement ways of improving political and financial relationships between Ilamos and
other state parties and also end the violation of human rights at Ilamos.
6. Transactions between Nyake and Ilamos were halted in November 2009duringUN
general meeting and thus Tabaab, a terrorist group started kidnapping citizens of Nyake
hence affecting tourism and there was increased terrorist attacks after the government of
Nyake issued a statement supporting military and humanitarian intervention into Ilamos
by AU and has since then taken reasonable steps to protect its citizens and economy
through military operations and proportionally responding to the attacks. It also invoked
aarticle 51 of the UN charter a sa legal basis.
7. In August 2012, Nyake Defence Force carried out a military invasion to Ilamos and
together with Amisom forces they effected an operation which saw capture of port
Kismayu and the militants fled and some were in Nyake organizing several attacks.
Ndaru area was attacked using several grenades which resulted to death of a police
officer and several casualties. The commissioner of police launched operation homeland
security.
8. ON 15th August 2015 police conducted impromptu search into area residents and
Mohammed Afar, a terrorist sympathizer as an anonymous tip stated was found in
possession of several ammunitions, 10 AK47 rifles and a grenade stashed 100 meters
from his house. He was arrested, processed and charged with murder under CAP 63 Laws
of Nyake and on 3rd September 2012 High Court convicted him and sentenced him to
death. He appealed the decision on grounds that his fundamental rights were violated and
court of appeal upheld the conviction on grounds that the High Court had interpreted the
fundamental rights correctly and the search by police was according to the law.

ISSUES

SUMMARY OF ARGUMENTS
The respondent humbly submit that;
1. The supreme court has jurisdiction according to article163 of the constitution as well as
the Supreme court Act (citation from but the applicant, MR. Mohammed Afar fails to
meet the requirements and standards of locus standi and all his claims are not admissible
(citation from statute).
2. The claimant was quite aware of the situation in Nyake especially the terrorist attacks
which have case great loses both of persons and the economy and also infringement of
peoples rights and therefore just like any other persons would be subjected to the
sanctions subject to the equal protection clause under the constitution since he was found
guilty and on first appeal the conviction was upheld.(citation)
3. As much as there exists errors in law and fact it is quite hard to appeal on grounds of
error especially of fact. In case of error in law the applicant should have clearly stated
and explained the exact errors but not just merely saying that an order be issued
nullifying his conviction because there is error.(citation)
4. Respondent state is acting to ensure that theres no more terrorist attacks which have led
to great economic loses, lose of lives as well as infringement of other peoples rights
therefore in this process all suspects are subjected to law and justice is done accordingly
and hence limitations of certain rights (citation)

SUBSTANTIVE ARGUMENTS

Objections for grounds of appeal d;

Article 49(1) (a) and international covenant on civil and political rights.Afar had the right to be
informed promptly of the reason for arrest and the fact that he did not object to his arrest and

there was enough evidence to incriminate him, means that he was rightfully convicted and i
object the nullification of the conviction. Nullification of the conviction will encourage
criminalism hence the law would not have served its purpose through sanctions which are meant
to deter criminal behaviour.
Right to fair hearing
Article 50(2) , states that every accused person has right to fair trial which include right to have
adequate time and facilities to prepare a defence i.e by getting a legal representative of ones
choice and also facilitates deemed necessary to prepare a defence that would be use to adduce
and challenge evidence produced by prosecution.
It is our opinion that the accused would have sought for the writ of habeas corpus to justify his
detention before seeking the intervention of a higher court.
Ground for appeal of trial court
Must be based on law and not facts. In Afars case there should be a clear error in judgment
which showed that there was a problem with the laws related to the case such as

Improper exclusion or inclusion of evidence.

Incorrect court instructions.
Sentencings errors.
False arrest.
Prosecutorial misconduct.
Ineffective assistance of counsel

TERRORISM & HUMAN RIGHTS

Terrorism and human rights are inter- related to each other because when one starts other
violates. Terrorism itself is an attack on human rights. The direct linkage between terrorism and
human rights was first recognised by World Conference on Human rights in vienna 1993 of the
vienna declaration and its programme of action stipulates that acts, methods and practices of
terrorism in all its forms and manifestation are activities aimed at the destruction of human
rights.
The rights which are violated by the terrorist attacks on innocent people and those who are
involved in the terrorist group.
Terrorism is a product of fanatical violence perpetuated generally in order to realise some
political ends humanitarian and ethical beliefs are sacrificed.

Objections to ground of appeal e;