The Supreme Court has directed Kituo cha Sheria to seek the opinion of the High Court on how protests should be conducted in the country.
In an April 12 judgment, the highest court in the land said it is limited to what cases it can hear and determine while the High Court has unlimited jurisdiction on criminal and civil proceedings.
The judgment was delivered by Deputy Chief Justice Philomena Mwilu, Justices Smokin Wanjala, Isaac Lenaola, Njoki Ngung’u and Mohamed Ibrahim. “We cannot assume jurisdiction where it is not expressly conferred,” they said.
Representing Kituo cha Sheria, lawyers John Khaminwa and John Mwariri had sought an advisory opinion of the court on whether there was a limitation of rights regarding protests and under what circumstances it can happen.
They also wanted the court to advise if the state can interfere in the right to freedom of assembly and who should be held liable for losses and property damage during protests.
The lawyers also wanted the court to find whether interference by police during protests led to the destruction of property, injuries and death.
Reasonable restrictions
Dr Khaminwa and Mariri sought to have the five judges say whether there is a need for reasonable restrictions to protect public safety, national security, public order or the rights and freedoms of others and if there is a need to balance the interest of protestors and the interest of the public.
Among the other issues raised for the court to determine were whether protesters’ rights could be enjoyed at the expense of others, if the violence, destruction of property and disruption of public order can lead to legal consequences, and whether protestors can sue if their right to take part in a demonstration was violated.
State Counsel Emmanuel Bitta opposed the application saying that the lobby group could not file the case because it is an NGO and not a state organ, national or county governments as provided for in Article 163 (6).
Khaminwa, on his part, argued that the NGO was relying on the people and it was before the court as a person under the umbrella of a state organ and the two tiers of government.
He said his client’s application stemmed from allegations of human rights violations, destruction of property and crimes which could not be ignored.
The judges, however, agreed with Bitta saying they could not offer advice on the matter.
“The only parties that can apply for an opinion are the three, a state organ, county government and the national government,” the judges said.
