The Right to assemble and demonstrate – Kenyan Law and Reality

Demonstrator during the "No Reform - No Election" protests in Kisumu in October 2017, Photo: Simon Achola
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Every Kenyan has the right to peacefully assemble with others to express their will and feelings. They can do it everywhere, except in some areas that were gazetted as protected areas. Those who wish to assemble must notify the police three days ahead to allow the police to make arrangements and plan for the protection of the right to demonstrate (Sec. 5, Subsec. 2 of the Public Order Act, see below). To make it clear: Police is not meant to restrict the right to demonstrate but to provide security to the demonstrators.

It is article 37 of the constitution (in the Bill of Rights section), that makes demonstrations to be a fundamental right:

“Assembly, demonstration, picketing and petition
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

Restrictions of the right to demonstrate

The government (Interior Ministry) or the police can NOT prohibit or restrict a demonstration. To seek such a restriction, they have to go to court. The judiciary is the only institution that may issue a ruling to restrict the right of expression and peaceful assembly. This is provided for in the Constitution, Art. 24(3) in conjunction with 24(1):

“Limitation of Rights and Fundamental Freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including …
(2) …

(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.”

Best: A Litigation Process

The mentioning in Para (1) of the “relevant factors” that should be taken into account when limiting a fundamental right hint to the fact that limiting the right to demonstrate should a litigation process. For example, as for the NASA (National Super Alliance, the opposition’s coalition) demonstrations during the Presidential election process 2017, it can be seen as a relevant factor that the opposition wished to demonstrate in the centres of cities, not in the outskirts. The demonstrators want to be noticed. But another relevant factor is the access to the Central Business District, CBD, that should not be prohibited for a whole day. So, the outcome of a court hearing or of a mutual agreement with the police could have been that the demonstration in the CBD would have been limited to one or two hours.
Instead, the government insisted on not going to court and on trying to ban the demonstrations in the CBD, while the opposition insisted on demonstrating in the CBD at any time. NASA also did not go to court or start a litigation process. Legal advice, however, is, not to ignore an illegal order of the state but to seek redress by the judiciary to clarify the order’s illegality. The result of the demonstrations was that people were killed, an unlikely outcome if both sides had obeyed by the rule of law.

Disobedience of Officers

A police officer who notices that he is ordered to follow an illegal order, may disobey it. His superiors may take disciplinary action against the officer – but during the process, it may become clear that the order was illegal and the disobedience was justified.
Violence in Demonstrations
First of all, police should be ready to repel attackers of a demonstration. If the demonstration itself becomes violent, police should react with a reasonable escalation of force. They are not allowed to use bullets against people who throw water bottles. And before shooting live bullets there comes the choice of rubber bullets and water cannons. If demonstrators are firing live bullets, police are allowed to use live bullets.

Sources, other than cited above:
Public Order Act

(as retrieved from kenyalaw.org on Oct. 28, 2017):

5. Regulation of Public meeting and Processions

(1) No person shall hold a public meeting or a public procession except in accordance with the provisions of this section.

(2) Any person intending to convene a public meeting or a public procession shall notify the regulating officer of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession.

(3) A notice under subsection (2) shall be in the prescribed form and shall specify—
(a) the full names and physical address of the organiser of the proposed public meeting or public procession;
(b) the proposed date of the meeting or procession and the time thereof which shall be between six o’clock in the morning and six o’clock in the afternoon;
(c) the proposed site of the public meeting or the proposed route in the case of a public procession.

(4) Where, upon receipt of a notice under subsection (2), it is not possible to hold the proposed public meeting or public procession for the reason that notice of another public meeting or procession on the date, at the time and at the venue proposed has already been received by the regulating officer, the regulating officer shall forthwith notify the organiser.

(5) The notification by the regulating officer under subsection (4) shall be in writing and shall be delivered to the organiser at the physical address specified pursuant to the provision of subsection (3).

(6) Where the regulating officer notifies the organiser of a public meeting or public procession in accordance with subsection (3) that it is not possible to hold the proposed meeting or procession, such public meeting or procession shall not be held on the date, at the time and venue proposed, but may, subject to this section, be held on such future date as the organiser may subsequently notify.

(7) The organiser of every public meeting or public procession or his authorised agent shall be present throughout the meeting or procession and shall assist the police in the maintenance of peace and order at the meeting or procession.

(8) The regulating officer or any police officer of or above the rank of inspector may stop or prevent the holding of—
(a) any public meeting or public procession held contrary to the provisions of subsections (2) or (6);
(b) any public gathering or other meeting or procession which, having regard to the rights and interests of the persons participating in such gathering, meeting or procession, there is clear, present or imminent danger of a breach of the peace or public order,
and may, for any of the purposes aforesaid, give or issue such orders, including orders for the dispersal of the meeting, procession or gathering as are reasonable in the circumstances, having regard to the rights and freedoms of the persons in respect of whom such orders are issued and the rights and freedoms of others.

(9) Any person who neglects or refuses to obey any order given or issued under subsection (7) shall be guilty of an offence.

(10) Any public meeting or public procession held contrary to the provisions of subsections (1) and (5) shall be deemed to be an unlawful assembly.

(11) Any person who takes part in any public meeting or public procession deemed to be an unlawful assembly under subsection (10), or holds, convenes or organises or is concerned in the holding, convening or organising of any such meeting or procession shall be guilty of the offence of taking part in an unlawful assembly under Chapter IX of the Penal Code and liable to imprisonment for one year.

(12) The organiser of any excluded meeting may request the regulating officer that the police be present at such meeting to ensure the maintenance of peace and order.

(13) A request under subsection (12) shall be in writing and shall be delivered to the regulating officer at least three days before the proposed date of the meeting.

(14) The regulating officer shall keep a public register of all notices received under subsection (2).

(15) Any person may, during working hours, inspect the register kept under subsection (14).

6. Prohibition of offensive weapons at public meetings and processions

(1) Any person who, while present at any public meeting or on the occasion of any public procession, has with him any offensive weapon, otherwise than in pursuance of lawful authority, shall be guilty of an offence.

(2) For the purposes of this section, a person shall not be deemed to be acting in pursuance of lawful authority unless he is acting in his capacity as a police officer or member of a fire brigade or otherwise in his capacity as a public officer or as a servant of a local authority.