How public demonstrations will change if proposed new law is passed

A man holds up a stone and a teargas canister during Azimio protests in Nairobi, March 2023. [Maxwell Agwanda, Standard]

Since the colonial era, the right to protest, assemble, picket, or meet as a group advocating or expressing grievances has been contentious.

Protesting in the streets has been a significant aspect of Kenyans' fight for justice and rights, from Harry Thuku's arrest in 1922 for advocating for African rights to the fight for multiparty democracy in the 1980s and '90s.

Protests have had mixed outcomes. Often, they have been marred by violence, leading to injury, death, and destruction of property. Different actors, including protestors, counter-protestors, opportunistic criminals, and law enforcement, have been blamed for these incidents.

Supporters of the right to assemble view it as a vital means for the public to voice their opinions. Conversely, those in power frequently perceive it as a potential threat. Others argue that protests unjustifiably disrupt daily life, affecting access to public buildings, roads, and businesses. This perspective has gained traction, especially among those seeking to curtail the right to protest.

Some protests are inherently inconvenient for those not involved. They are designed to make the mainstream pause and consider the issues raised, particularly when marginalised or underrepresented groups protest.

In 1997, the law was amended to remove the notion that police could allow or disallow assemblies. The requirement was changed to merely notifying the police of the intention to assemble or protest, enabling the law enforcers to prepare accordingly. Importantly, the law allows police to issue a written notice if there is a legitimate reason why the protest should not proceed.

In April, the Assembly and Demonstrations Bill, was published. The private member's Bill recognises that assemblies can be spontaneous and unplanned. It distinguishes between various types of gatherings and demonstrations, defining the latter as acts intended to influence public opinion or overpower it. A public gathering is defined as any assembly or procession of more than one hundred persons on a public road.

The Bill aims to ensure that non-participating members of the public can enjoy their environment and conduct their business without interference. It requires individuals planning an assembly to notify authorities at least three days and no more than 14 days before the event. Disobedience to police orders or organising an unlawful assembly is criminalised, with penalties including imprisonment for up to one year.

The Bill also mandates the creation of a public register of notifications, open for inspection during working hours. It grants regulating officers the power to impose conditions on organisers in the interest of public safety, order, and the protection of others' rights. These conditions may include payments for clean-up costs and considerations of environmental or cultural sensitivities. Any special conditions or prohibitions can be appealed to the High Court.

Furthermore, the Bill prohibits incitement to violence or hatred based on culture, race, sex, language, or religion. Protestors are banned from obscuring their faces, wearing clothing resembling those of disciplined forces, or carrying weapons. Organisers and participants are jointly liable for property damage unless they can prove it was beyond their control or they attempted to prevent it.

However, the Bill misses the historical nuances of protest in Kenya, particularly in light of the violent 2023 'Maandamano'. Protests have been a critical aspect of Kenyan history, and any legal framework governing them must consider their historical context and the balance between public order and the right to assemble, express oneself and participate in public life, which may only be limited under the guidance of Article 24 of the Constitution.

While the Bill aims to address these concerns, it is essential to ensure a holistic look at why protests have turned violent in the past, including how we police, what weapons are used and whether the police are truly independent and neural, especially during political gatherings.