10 YEARS LATER

Katiba at 10: Right to protest is a constitutional guarantee

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

In Summary

• As we celebrate 10 years of Katiba, we remind ourselves that every person has an obligation to respect, uphold and defend this Constitution.

• As a people, we must not let go of our constitutional guarantees to protest.

Activists are teargassed during a demonstration calling for arrest of Covid-19 funds looters at Uhuru Park, Nairobi, on August 21.
TEARGASSED: Activists are teargassed during a demonstration calling for arrest of Covid-19 funds looters at Uhuru Park, Nairobi, on August 21.
Image: ANDREW KASUKU

Since last week, the country has been witnessing angry protesters in different parts of the country condemning  the Covid-19 millionaires and continued plundering of public resources meant for the sick.

The protesters, who marched in Mombasa, Nairobi, Kisumu, Nakuru and other cities and towns,have been calling for the immediate arrest and prosecution of those implicated. Reports indicate hundreds of millions have been lost in what appears to be  massive, orchestrated and wanton looting of funds that the country received to fight the pandemic. 

Reports further say the country is facing a backlash from donors who have since threatened to withdraw their support from the country’s efforts to combat the pandemic. Some no longer want to donate cash.

The Global Fund, the US Embassy and the the United Kingdom have all been reported to have made their intentions of pulling out known. They have been disgusted by how a few individuals have turned the pandemic into a cash cow and enriched themselves.
 
It would appear that while many are struggling to deal with the challenges of the disease, others are reaping where they did not sow and turning into millionaires overnight.
 

 

 

Civil society actors led by the Kenya Tuitakayo Movement have been at the forefront seeking to highlight the issue and ensure it is addressed by those in authority. Human rights organisations include HAKI Africa, Kituo cha Sheria, Centre for Enhancing Democracy and Good Governance, Fast Action Movement and social justice centres.

They have been at the forefront organising and participating in protest. HOwever, these demos have all been met with resistance from the police, who dispersed the protesters violently, using tear gas and arresting others.

Article 37 of the Constitution states: “Every citizen has the right, peaceably and unarmed, to assemble, to demonstrate, to picket and to present petitions to public authorities."

This right is provided in Chapter Four of the  Bill of Rights.

Article 21 (1) further provides: “It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights."

It is, therefore, clear that violently dispersing peaceful protesters is not only illegal but also unconstitutional.

Police must be told that they are under constitutional obligation to promote and protect the rights of Kenyans as provided for by the Constitution, including the right to protest.

As a matter of fact, when they see people in the streets agitating over a genuine and sensitive issue such as calling out Covid-19 millionaires, they should actually provide them with security to air their grievances and call for action.

Police, who are Kenyans too, must not only abide by the law and the Constitution but also understand the anger of the people. Instead of torturing protesters, they should protect them.

When they use fake excuses such as allegedly violating Covid-19 regulations to disrupt protests, they are applying double standards as the same treatment is never meted out to politically correct politicians during their crowded public meetings.

Media outlets have been conscientious in the last few months in showing how politicians have continued to violate Covid-19 regulations as police do nothing. But when Kenyans and civil society actors take to the streets to denounce the greedy politicians who have stolen from public coffers, the police are swift in dispersing them using tear gas purchased by the same taxpayers who are complaining.

As we celebrate 10 years of the 2010 Constitution, we remind ourselves of Article 3 (1) – “Every person has an obligation to respect, uphold and defend this Constitution."

As a people, we must not let go of our constitutional guarantees. The police must move with the force of change or be left behind at their own peril. The right to protest is a crucial for an open and democratic nation. Without it, we cannot air our views and express our anger at those who want to rape our Constitution and steal from the public.

The right to protest must be defended and we all have a constitutional obligation to do so.