Nkaissery has no authority to stop demonstrations

An old dog does not learn new tricks, so the adage goes. Contemporary research however continues to show that you can in fact teach an old dog new tricks?—?the dog just needs to use a different kind of nerve cell to learn them. Yet another saying, perhaps far less known but old enough to be one of those Latin phrases that’s engraved into stone somewhere in the sprawl of the former Roman Empire; Repetitio mater studiorum est.

Repetition is the mother of all learning. Which is why I will embark on an exercise I have undertaken severally in the past, that is, repeating ad nauseam that under Article 37 of our Constitution every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. This right is buttressed by Article 19(3) of the Constitution which provides that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.

And yet, despite crystal clear constitutional provisions, in a lapse consistent with his extended existence, Interior CS Joseph Nkaissery on Tuesday purported to abrogate this right by fiat. The thing about the Constitution is that it is the supreme law of the land and cannot be set aside at the discretion of a Cabinet Secretary. I suspect the protesters who marched to CORD Leader Raila Odinga’s office the very next day following Nkaissery’s order understood this quite well, which is why they chose to march right past Nkaissery’s Harambee House office on their way, to demonstrate the contempt with which his directive must be treated.

To be fair, the right conferred by Article 37 is not absolute. Yet the Constitution does not vest any Cabinet Secretary with the power to annul the rights. In his ruling on whether the CORD Madaraka Day rally could proceed, High Court Judge George Odunga affirmed the position that the State does not grant rights and fundamental freedoms to any person, necessarily so because human rights are generally universal and inalienable rights of human beings.

A Constitution simply recognises the natural and original human rights of mankind which any and every human being should have in order to lead a dignified life till his or her natural death. The judge emphasised that the police were under an obligation to facilitate the peaceful enjoyment of the right to protest and to protect innocent Kenyans from being harassed by the people attending the rally and also to ensure that other persons do not unlawfully disrupt the same.

Pursuant to the ruling, CORD had in place hundreds of peace marshals and the Uhuru Park rally proceeded peacefully. In fact, where police have kept their distance, the rallies have been largely peaceful.

The only ingredient absent from the Madaraka Day rally and the subsequent scheduled protest against the IEBC on Monday which guaranteed both events ended peacefully was illegal police action.

Our police seem to interpret their obligation to facilitate the protests as an obligation to meet protesters with water cannons, teargas and live bullets. This is not to say police cannot act firmly on any miscreants who attempt criminal activities under the guise of protesting. Thieves and looters should be arrested and charged in court as per the law. In the spirit of restatement, shooting and killing demonstrators is illegal.

While it is possible to limit the freedoms of assembly and free speech, the only avenue is pursuant to the provisions of Article 24 of the Constitution which requires legislation to effect the limitations and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Mr Nkaissery’s directive is a stranger to the law, an old trick, and mine is to invite him to be open to learn anew.