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September 20, 2018

Gather in peace

Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities

I am most probably the only individual named in a specific court order allowing me to hold a public rally in Kenya. This is because in 2012, I went to court seeking such orders after the police refused to allow me to organise a rally famously called ‘Limuru 2’. Justice Isaac Lenaola issued an order that not only gave me the right to hold my meeting, but also obligated the police to provide security for it. However, there was a specific condition: I had to be peaceful and unarmed. And so did everyone else attending.

The basis of my order and the foundation upon which Justice Lenaola issued such instructions is Article 37 of the Kenyan constitution. It very specifically states, “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

Essentially this means that no one can legally stop anyone from holding a political rally or a public demonstration. However, one exercises this basic right on condition that the convener and those attending with him or her must be “peaceable and unarmed”. You cannot have one without the other.

During my petition in 2012 Justice Lenaola re-emphasised this issue. In fact it was quite clear that if something happened and either I or anyone else attending ‘Limuru 2B’ was not peaceful or unarmed, I, as the convener of the meeting, would be held responsible and would be liable for any losses to life and property.

Four years later, Cord calls public protests under the same constitutional provision. They want to force a national dialogue on the IEBC. Just as in my case, attempts to stop these demonstrations are made and the courts declare them unconstitutional. However Cord demonstrators end up being neither ‘peaceable’ nor ‘unarmed’. But the demonstrations continue until the desired objectives are met.

Article 27 stipulates that every person is equal before the law. I am therefore a bit peeved that whereas I had to follow the requirement of being peaceable and unarmed, prominent politicians do not seem to have to follow this requirement in their own public events. Maybe some time between 2012 and 2016 the basic condition on how Article 37 is exercised was scrapped.

This is what took me to court early this week.

I want the court to explain to me whether the precedent set by Cord in their recent demonstrations is what now applies to future demonstrations. I also need to know whether during demonstrations, non-demonstrators have the right not to be involved and to stay safe and have their property secure.

Finally, I have noted that there was no emphasis on conveners of Cord’s demonstrations as regards liability for any losses during their demonstrations. I want to know whether this has also changed. These demonstrations are called by specific individuals, at specific places, for specific reasons, to achieve specific objectives. Why is no one responsible when things go wrong? I know the court will explain.

 

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My condolences go to the families of Willy Kimani, Josephat Mwenda and Joseph Muiruri. What happened to them is despicable. But we must resist the temptation to make this another case of extra-judicial killings. The specific people who committed these gruesome crimes must face the law — as individuals! Blanket condemnation of ‘some state officers’ will just make these murders another statistic. I hope our civil society will understand this.

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