• Despite the fact that the law obligates the state to respect and protect the citizens’ right to peaceful demonstrations, it has lived to prove otherwise.
• Teargas, water cannons, truncheons and bullets, among others have been the definitive lingo of the police vis a vis Article 37 of the Constitution.
Image: FAITH MATETE
Article 37 of the Constitution guarantees every person the right to, peaceably and unarmed, assemble, demonstrate, picket and present petitions to public authorities.
As the rule stands, rights are accompanied by responsibilities and obligations. In most instances, the duty bearer carries the responsibility to ensure the right holder enjoys the right.
However, in my view, the right to demonstrate is a sui generis right ‘[of its own kind] whose effectuation horizontally vests obligations on both the state and the demonstrators. It is noteworthy that since the early days of our republic to date, the enjoyment of this right has been practically misconstrued by the state and the people seeking its enjoyment.
In the case of Mohammed Aktar Kana vs the Attorney General [2010] eKLR, Justice Mohamed Warsame rightly diagnosed the problem bewildering the security arms of the government as regards the implementation of the bill of rights.
In his words, Justice Warsame said, “This application is a clear indication that the security arms of this country have not tried to understand and appreciate the provision of this new Bill of Rights. It also shows yester years impunity is still thriving in our executive arm of the government.”
Similarly, Kenyans fail to rightly construe the legal parameters in which they are bound to enjoy their rights under Article 37 of the Constitution.
Despite the fact that the law obligates the state to respect and protect the citizens’ right to peaceful demonstrations, it has lived to prove otherwise. Teargas, water cannons, truncheons and bullets, among others have been the definitive lingo of the police vis a vis Article 37 of the Constitution.
Similarly, not once or twice have the demonstrators been armed against the police with stones, sticks and many more criminalized weapons during their demos. To the demonstrators, this means the right to demonstrate is fully guaranteed and with no legal parameters of its enjoyment. To the police, the right to demonstrate and picket is no longer a right but a conditional administrative privilege granted by the state. This should not be the case.
To begin with, in the wording of Article 37, the only demonstrations, assemblies, pickets etc. that are constitutionally guaranteed are those that are peaceful and actualized without any armaments from the demonstrators.
This is further buttressed by Article 21 of the International Covenant on Civil and Political Rights and Article 11 of the African Charter on Human and Peoples' Rights, among other municipal and international legal instruments. This is to say, the first prerequisite is peace and the lack of armaments in the entire ordeal.
Furthermore, Section 103 of the National Police Service Act criminalizes any assault on a police officer, attack to an animal belonging to the police service and the destruction of police property while in execution of duty.
Contrary to the legal expectation, political demonstrations in Kenya have been understood to mean the physical might of the people against the police, whose success is ultimately measured by the amount of destructions caused.
Equally, on the side of the police, the NPSA (Section 61 and Schedule 6) requires that the police pursue all possible non-violent means within their disposal to deal with demonstrators. They are only permitted to use force in the event that non-violent means are ineffective and without any promise of achieving the intended result.
Most importantly, the force applied, if necessary, must be proportionate to the pursued legitimate objective, the seriousness of the offence and the resistance of the respondent demonstrator. Furthermore, in the event of any injuries caused, the police should provide medical assistance to the victims, inform their relatives of the same and report the incident to the Independent Police Oversight Authority for further investigations.
Contrary to the expected, the practice has been the contrary of the law. A more vivid example being the recent Azimio demos on March 20.
From the onset, the police failed to give room to Azimio leaders to exercise their constitutionally guaranteed right to demonstrate. They illegally barricaded roads leading to Nairobi’s Central Business District, disproportionately used excessive force against the demonstrators across the country and even shot dead a Maseno University comrade.
Similarly, the people violated their responsibility to uphold the law. Many, armed with stones and other illegal weapons, charged against the police, destroyed property and dismembered the peace of non-demonstrators.
Conclusively, notwithstanding any underlying circumstances, there is a dire need for the rightful interpretation and application of the law.
Ndubi Marvis is a student of law at the Moi University School of Law (Annex Campus).He can be reached through, [email protected]