There have been renewed calls to tighten the laws governing street protests and demonstrations in the wake of the Gen-Z unrest.
However, long gone are the days when citizens
needed permission from police or public authorities to express dissent in
public spaces.
The
right to assemble, demonstrate, picket and petition public authorities is
explicitly guaranteed by Article 37 of our Constitution.
Any
limitation on this fundamental right must meet the constitutional threshold for
it to be deemed reasonable and appropriate in a free and democratic society.
To
operationalise Article 37, Parliament enacted the Public Order Act, Cap. 56,
which regulates public meetings and processions.
Under
Section 5 of the Act, persons intending to hold demonstrations or meetings are
required to notify the regulating officer at least three days and not more than
fourteen days before the intended date.
This
notice must include the names and physical address of the organiser, the
proposed date, time, venue, or route of the event.
The
objective of involving security agencies is to serve three purposes: protecting
protestors, safeguarding the rights of non-participants, and deterring criminal
elements from hijacking peaceful protests.
This
model has been successful in other jurisdictions, where protestors and security
personnel walk side by side during street demonstrations that resemble peaceful
street carnivals.
Such
coordination is only possible through constructive engagement among stakeholders
in the planning phase, something that remains a mirage in Kenya.
Having
been part of the Azimio la Umoja One Kenya Coalition Maandamano Team between 2022 and 2023, I had a front-row seat to
the blatant disregard of the law by security agencies.
Despite
our efforts to serve them with notification letters and engage in dialogue
aimed at agreeing on measures for peaceful protests, our members were
frequently arrested and arraigned in court for allegedly participating in
unlawful assemblies, cases that remain active to date.
Ironically,
despite a reformed police service that is constitutionally mandated to be
people-centered, its conduct remains shackled by a colonial legacy that was designed
to suppress the natives while protecting the crown.
This
contradiction persists despite laws such as the National Police Service Act and
Service Standing Orders clearly delineate the police’s mandate in facilitating,
rather than stifling, constitutional rights.
Our
fundamental challenge is not a deficiency of laws.
The
Constitution is robust, and the statutory framework is sufficient. What we
suffer from is a deficit of integrity and fidelity to the law.
What guarantee is there that a new legal regime
will be upheld if the current one is not being followed? The current push to
amend laws on public protests is an attempt to legislate away bad governance.
The
proposed changes fail the constitutional test.
They
are short-term fixes to deeply rooted governance challenges that often than not
drive citizens to the streets.
For
Article 37 to be meaningful and effective, all stakeholders, including
protestors, police, and policymakers, must honour their constitutional
obligations.
Only
then, can Kenyans enjoy their civil liberties without infringing on the rights
of others.
Tony Moturi, is the Advocate of
the High Court of Kenya & Legal Officer, ODM Party
