• The judge’s proposal that a maximum number of protesters be prescribed is unconstitutional since Article 37 protects freedom of assembly as a right that belongs to ‘Every person’.
• Regulations demarcating demonstration zones would deny protesters the ability to reach their target audiences, rendering their assembly ineffective.
The High Court in Ngunjiri Wambugu v Inspector General of Police and others (July 29, 2019) has directed the state to change or develop new law and regulations to ensure peaceful assembly, and to write Codes of Conduct for organisers of demonstrations. The purpose is to prevent violence, especially by making organisers legally responsible for any damage and injuries occurring during protests.
The petitioner had requested these following the 2016 IEBC demonstrations where he claimed the violence by protesters threatened the rights of members of the public.
The judgment recommends regulations with “prescriptions for demarcation of demonstration zones, responsibilities for clean-up costs, maximum numbers, consents of persons/entities adjacent to demonstration zones with appropriate penalties when they go outside the expectations of the law.”
NEGATIVE SIDE OF THIS APPROACH
The implications of the pronouncements and orders in this judgment potentially violate the right to freedom of assembly under Article 37 of the Constitution.
A demonstration zone is exactly what it sounds like: a designated area in which protesting is permitted, to the exclusion of other public spaces. While it may sound as though protects the right, in fact, it does the opposite by confining the exercise of the right to those spaces. It is akin to a 'designated smoking zone’, where smoking beyond the designated area attracts state sanctions.
Similar proposals elsewhere, have been fought by the American Civil Liberties Union and other civil liberties organisations, because their real effect, indeed, objective, is censorship and an unjustified limitation on the rights to freedom of speech and assembly.
Location is an important aspect of the right to assembly. The motive of a protest is to draw attention to the cause supported by the organisers and to convince others of the rightness of the cause.
This often requires that it not only be held in view of the public but also that it be in proximity to the object of the protest. For instance, a protest against MPs awarding themselves high salaries is more effective if held in front of the Parliament Buildings (or at least nearby).
Regulations demarcating demonstration zones would thus deny protesters the ability to reach their target audiences, rendering their assembly ineffective. Suppose, for example, that demonstrations were restricted to Freedom Corner (in Uhuru Park). People would only be aware of them if they came voluntarily to the park — totally defeating the purpose of confronting the public with a cause.
This, in addition to the judge’s proposal that consent of the persons/entities adjacent to demonstration zones be sought, constitutes unreasonable restrictions on the right to freedom of assembly.
The judge’s proposal that a maximum number of protesters be prescribed is unconstitutional since Article 37 protects freedom of assembly as a right that belongs to ‘Every person’. Placing a general cap on the number of people allowed to participate in a demonstration would be to deny some this important right.
BURDEN ON ORGANISERS
The judge proposes that “the regulation could specify the full organiser’s details which must be captured to ensure that in the event of loss of lives and destruction of property then they are liable.” Interestingly, the current Public Order (Amendment) Bill 2019 also seeks to impose upon organisers of protests liability to compensate for loss or damage during protests and imprisonment for as long as one year.
Holding protest organisers jointly liable for acts they may not have committed is an unfair limitation on the right to freedom of assembly. Its effect would naturally be to deter the organising of protests for fear of the possible penalties if damage occurs.
And it is not in line with basic principles of criminal law which are based on the actual fault of individuals since organisers would be held liable without their having any intention or having committed any actual criminal act.
While there is a need for regulations about protest organisers, the focus should not be to impose criminal liability on them but rather to guide their relationship and partnership with the police to effectively manage, and ensure peaceful conduct of public gatherings. Protest organisers are an important link between police and protesters, which is useful for negotiation to enable police to discharge their duty to facilitate assemblies.
Trying to ensure that demonstrations are held peacefully and to minimise loss of life and damage to property, as the judge notes, is not wrong in principle. However, we must warn against the tendency of the state to roll back on constitutional rights under the guise of ‘peace and security’. The late Justice Onguto observed the same in Eugene Wamalwa v Minister for State for Internal Security (2011):
“The machinery of criminal justice cannot be allowed to become a tool for the police (to) violate the constitutional rights of citizens. The invocation of the criminal law, in unsuitable circumstances or for the wrong ends must be stopped…”
In the Ngunjiri Wambugu case, the High Court justifies unreasonable state action to criminalise protests. Justice Makau seems to be prejudiced against protesters when he states:
“In this country, it is no longer a secret that demonstration, picketing, assembly have escalated from peaceful and unarmed gatherings to violent unruly and unlawful gatherings which end up clouding the real agenda for demonstration and in which every member of the gathering takes law into their own hands.”
ROLE OF POLICE IN VIOLENCE
This ignores the role that police officers play in causing or initiating violence during protests. In their report on the 2016 IEBC demonstrations, the Independent Policing and Oversight Authority observed that there was excessive use of force on demonstrators, serious injuries and deaths at the hands of police officers and occasionally, prison warders.
A new study published by the Centre for Human Rights and Policy Studies, 'Policing Protests in Kenya', observes that the existing police structure, training and resources have had negative effects on their management of protests.
Specifically, it found that 72 per cent of police involved had never received any specialised training on public order control. The equipment available for public order control was also inadequate as reported by 60 per cent of the police officers surveyed.
Moreover, the study found that police attitudes and culture contribute to violence during protests. It found that 42 per cent of the police believe that an aggressive and overbearing culture is more useful in public order control. The study showed that police officers hold a negative perception that protesters are out to loot and damage property, which is adopted to justify the use of excessive force to disperse them.
What this reflects is the complexity of public order control where numerous factors are responsible for poor management of public gatherings, including the occurrence of violence during protests.
It is thus important that any policy or legal reforms capture this complexity by responding to an evidence basis, and include improving the capacity of police officers to manage protests. Essentially, the responses must not unfairly restrict the rights of or target protesters but rather ensure that police facilitate the right by responding appropriately and fairly to security risks.
As Marion Ogeto and Waikwa Wanyoike argue in their chapter in this study, “The police must be better equipped at crowd control, employing a much more disciplined and objective approach in policing to allow for better isolation of rogue characters in order to minimise compromising the right of those who have chosen and are practicing peaceful assembly.”
The state far too often uses ‘national security’ as a cloak to deny the fundamental right to assembly. The regulations proposed by the High Court in Ngunjiri Wambugu is a distressing instance where the court has justified state excesses under this guise.
The courts must be sure to guard against attempts to unjustifiably limit the right to assembly. To achieve this, judges ought to take a nuanced and elaborate assessment of each state attempt to limit the right in order to ensure that such restrictions do not impair the essence of the right.
The writer is a lawyer and researcher, currently working as Junior Researcher Fellow at the Centre for Human Rights and Policy Studies.