Holding demos is a constitutional right, not State privilege

A police officer kicks a tear gas canister during a nationwide strike to protest against tax hikes and the Finance Bill 2024 in downtown Nairobi, on June 25, 2024. [AFP]

Kenyan citizen, regardless of their political ideology or religion, should safeguard and/or defend the rights for peaceful protests even if they vehemently disagree with what protestors are saying. 

The Bill of Rights guarantees the right to peaceful assembly in protest. In reality, if the citizen of any nation cannot speak criticise the government through demos, then it implies that the citizenry is not free.  

The freedom of assembly and freedom expression are guaranteed by our Constitution 2010.

However, despite these guarantees, laws regarding the right to protest undermine the human rights enshrined in the Constitution and go against Kenya’s international human rights duties, including the Public Order Act and the Penal Code. That in so many ways, define what it means to be a Kenyan. 

The right to protest is guaranteed under Article 37 of our Constitution. Regrettably, 12 years after the promulgation of the Bill of Rights, it is disappointing that the right is still treated as a privilege.

This right is equally guaranteed under regional and international human rights organisations ratified by Kenya including Article 11 of the African Charter on Human and Peoples Rights (Banjul Charter) and Article 21 of the International Covenant on Civil and Political Rights.

Spontaneous protests are not illegal, as the African Commission Guidelines on the Freedom of Association and Assembly in Africa point out. The guidelines operationalise the implementation of Articles 11 of the Banjul Charter by State parties and relevant stakeholders.

And citizens do not require police permission to demonstrate. Under the Public Order Act and relevant International Human Rights establishments, the rationale for notification is for the “police to provide security for the protesters” and must not be misconstrued as an obligation on those who wish to protest to seek ‘permission’ from the police. In itself, a lack of notification is not sufficient reason to characterise a protest as “unlawful”.

Therefore, Kenyans must strongly condemn the inhuman behaviour of our police, whose conduct not only contravenes numerous constitutional and legal provisions but is a clear demonstration of the repressive nature of the National Police Service. Precisely, protesting is not rioting, and rioting will never be protesting.

Peaceful protesters should not be maligned or denied their rights because of unsound behaviour that others may display in pretense of demonstrating.

The government should not stop demonstrations. Sometimes protesters may be noisy, carry posters and express themselves in ways that some may find objectionable. However, if we only allow people only you agree with, then 'free speech' will not really exist.

No citizen would want to live under a repressive government. When the State denies the people their right to peaceably assemble, to petition the government for redress and to exercise their right to free speech, then we are walking huge towards dictatorship.

The government should never silence its critics because the right to protest is not a government privilege but it is a basic Kenyan right.

Dennis Onyango is an advocate of the High Court of Kenya