TONY MOTURI: Safeguard the spirit of Article 37 of the Constitution

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