• The law gives the police power to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives.
• The Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions.
Any progressive and student of politics, law, and history knows and can tell when conditions are ripe for mass action.
Mass action is the strategic use of large-scale protests and demonstrations to pressure governments, corporations or other powerful institutions to take certain measures or refrain from doing something.
These activities are sanctioned and protected under Article 37 of the Constitution.
This was not the case before 2010, and many crusaders for freedom experienced the violent and painful measures designed to nip any protests against the government of the day in the bud. It would take a book to recount this history.
The beatings, torture and murders of those who dared defy the Kanu government in agitation for freedom is well documented and the heroes from those struggles to birth our modern day freedoms and democracy are well known.
Following the promulgation of the 2010 Constitution, we had our first elections under the new dispensation in 2013. The election of Uhuru Kenyatta under the Jubilee Coalition was disputed at the Supreme Court. The apex court tossed the petition and Uhuru went on to serve for two terms.
Following the judgment, the opposition went back to the drawing board to start planning how to make Uhuru a one-term president. The country quickly moved on and continued to suffer her garden variety problems and miseries.
When 2017 rolled around, the combatants faced off yet again in an election whose presidential results were challenged and this time, the Supreme Court annulled the elections in an historic decision that few saw coming.
The court ordered fresh elections, which were boycotted by the opposition as the electoral commission that had bungled the presidential election was still in place. With that, Uhuru and his running mate, William Ruto, cruised to victory.
Unlike 2013, however, tensions in the country were sky high and there was even serious talk among serious politicians and other leaders to balkanize the country.
The situation was so tense that no one knew exactly how it would end but many feared the worst.
Uhuru reached out to opposition leader Raila Odinga in the now (in) famous handshake in March 2018.
Many believe the handshake saved the country from going to the dogs, while others say it set the ground for Raila to lose in 2022.
However, one indisputable fact is that the handshake stabilised the country and allowed Kenya to enjoy her garden-variety problems and misery once again, except it got worse.
It, however, pushed Deputy President William Ruto out of the government he helped form. With this, he saw the suffering of Kenyans as something he could offer a solution to and help usher him to the top office.
The strategy, plus other innumerable strategies and tactics saw the swearing-in of Ruto as Kenya’s fifth president. The losing Azimio coalition unsuccessfully challenged his win at the Supreme Court.
The court’s ruling has not settled well with those who believe and maintain Ruto did not fairly and squarely win. Indeed, Raila has given President Ruto three conditions he must comply with, otherwise the Azimio leader will lead “mother of all protests”.
These are to open the IEBC servers, stop the ongoing recruitment of the electoral commissioners and reduce the cost of living as Kenyans are suffering.
Ruto has not met those conditions and reducing the cost of living by the deadline is simply unrealistic to expect anyone, let alone the president, to achieve given the prevailing circumstances.
The other two, one about the servers is water under the bridge and even though the recruitment of electoral officials can be deemed to have some merit, there are ways to have it addressed short of under the barrel of a gun.
It is widely expected that Raila will be calling for mass action to force compliance with his demands. History is replete with examples where mass action has been utilized to bring about desired change. Top among that was in South Africa, where mass action led to the dismantling of Apartheid and release of Nelson Mandela.
PROTESTS NOT ABSOLUTE RIGHT
As state party to the 1966 International Covenant on Civil and Political Rights,which guarantees the right of peaceful assembly, Kenya, despite the hardship, experienced great and effective use of mass action that led to the new Constitution, enshrining “the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”
However, this right is not absolute.
In Ferdinand Ndung’u Waititu v. Attorney General (2016), Justice Joseph Onguto of the High Court noted that there was "no doubt that the right to assemble, demonstrate, picket and petition as enshrined under Article 37 [of the Constitution] is not absolute." It may, he observed, "be limited by law.”
Other judges of the High Court have reached similar conclusions, including in Boniface Mwangi v. Inspector General of Police (2017) where the High Court held that the right to assemble "is in some respects dependent on the enjoyment of other rights and although such a right must be respected and preserved, it must be exercised in due regard to other rights."
Although the court recognised the importance of having the freedom to choose a particular venue as a means to sufficiently enjoy the right to assemble, the court noted that existing law prohibits certain choices that may be chosen for assembly.
Towering among all laws that govern freedom of assembly, including mass action is the Public Order Act, which seeks to balance the right to have public meetings and the right for those not participating not to be affected adversely.
The law gives the police power to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives.
The Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions.
While peaceful assembly is fully protected and must not be interfered with other than as constrained in the Constitution, mass action under the current circumstances is unwarranted and unnecessary.
President Ruto has barely had time to assemble his government to increase the pace at which he must deliver his vision for the country. He must be given time and a few months into his new government is not it.
On the other hand, to force the President to take action that would make the situation worse for the country is not wise either.
Certainly threatening or attempting to march into State House is unacceptable and if in doubt, consult the Constitution and the aforementioned laws.
The Ruto government’s feet must be held to fire by the opposition but this must and can only be done responsibly and not in a manner that would result in undoing the progress we have made as country battling our battles but knowing when to stop.
It would behoove everyone to simply give Ruto time to put his government together and judge his performance and that of his government in 2027.
Anything short of that would be ill-advised and antithetical to that which has always set us apart as a peaceful nation, the dark history of 2008 notwithstanding.
Let that remain the only blot in our country’s peaceful history. We should all agree and do everything we can to make it so, including rejecting that which does not make sense and would send us the opposite direction.