Wednesday November 20, 2019
Quarry miners in Mandera East have obtained orders stopping the government from harassing them while carrying out their business.County Commissioner Kutswa Olaka told the court that the ban in the border northeastern region had been made in good faith and in public interest following violent extremism in the county.
High Court Judge Charles Kariuki agreed with the workers that it was wrong for the Mandera County commissioner and area police boss to impose a ban on stone mining in the county without consulting them.
Mr Olaka said quarrying had been suspended in an effort to curb attacks by the Somalia-based militants Al-Shabaab, who were also inciting residents and non-residents against each other.
The county commissioner said the majority of quarry workers were not from the area and had become a major target of Al-Shabaab attacks with more than 57 people killed since 2014.
But the 29-member Tawakal Quarry Producers Co-operative Society Ltd moved to court to challenge the government ban. They argued that the terrorist attacks happened in hotels and lodgings, shopping centres, residential houses, and not in the quarry sites.
The workers claimed that the ban presumed and curtailed freedom of movement, association and employment of all Kenyans by inputting discriminative and profiling references such as locals and non-locals to justify unreasonable, unfair and unlawful limitation of the right to movement or employment.
They contended that they have been lawfully conducting their trade in quarry works without any intimidation or harassment, until September 2018 when the police began flagging off their lorries carrying construction materials, and detaining and charging them for disobedience of the ban.
The miners argued that despite several requests for a copy of the suspension order, they were yet to be given. They dubbed the ban discriminatory because high-ranking county officials had been allowed to carry out the trade.
In the judgment at the Garissa High Court last week, Justice Kariuki said it was clear the group was not consulted by the administration before the ban was imposed.
“This in my view was a breach of the rules of natural justice as provided for under Article 47 of the Constitution,” he said.
Justice Kariuki added that the ban cannot be justified as they ought to have accorded the applicants an opportunity to be heard before imposing the ban.
“The ex parte applicants would have offered their views on how the respondents would best protect the lives of quarry workers from the terrorists, as the said quarry workers earn a living as well as the ex parte applicants,” the judge said.
The court quashed the order banning the extraction or excavation works and supplying of construction materials such as building blocks, concrete or sand from licensed quarries within Mandera East Sub-county.
He said the police should stop harassing, intimidating or arresting, the members of the group or seizing their quarry equipment or motor vehicles.