Law protects peaceful demonstrators from harassment by police officers

This week, despite the National Police Service's full force, Kenyans persisted with their efforts to occupy the streets of Nairobi and expressed displeasure with the 2024-25 Finance Bill proposals. Over 300 Kenyans were arrested in and around the Central Business District. Others were stopped, searched, and sprayed with water cannons, and protest materials such as pamphlets and posters were confiscated.

This incident exemplifies the police's continued efforts to curtail fundamental freedoms at the behest of the ruling regime, a trend that has persisted since independence. By law, the police are supposed to remain independent and neutral regarding the content of citizens' expressions and protests, intervening only when the expression violates laws such as incitement to violence, hate speech, or discrimination based on race, tribe, or other protected characteristics. Content neutrality and the right to protest are vital concepts that intersect within the broader context of freedom of expression and assembly, both in Kenya and globally.

Content neutrality is the principle that the government should neither favour nor disfavour particular viewpoints or messages when regulating speech or expression, including protests. In the context of protests, the government should not suppress or discriminate against demonstrations based on the content of their message.

Freedom of expression and the right to protest are enshrined in Articles 33 and 37 of the Constitution. Article 37 guarantees the right to peacefully and unarmed protest, demonstrate, picket, and petition. This right is crucial for a functioning democracy, allowing citizens to express grievances, advocate for change, and hold the government accountable. Protests against taxation are legitimate concerns for any citizen in a democratic society, given that taxation directly affects their earnings, expenditures, and savings.

Despite the constitutional protection of the right to protest, most anti-establishment demonstrations have been met with unlawful and often excessive force.

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In instances like the #FinanceBillProtests, the government, through the police, targeted protesters based on their sentiments against taxation, not because they were violating the law or threatening public order, national security, or public health as stipulated by Article 19 of the International Covenant on Civil and Political Rights. The Public Order Act has been criticised for being overly restrictive and granting authorities broad powers to limit or suppress protests.

Efforts have been made to reform these laws to better protect the right to protest and ensure content neutrality in their regulation. Any such law must comply with Article 24 of the Constitution, which requires laws to be clear and written, pursue legitimate aims such as maintaining public order, national security, and public health, and be necessary and proportionate.

Content neutrality, police independence and the right to protest are interconnected principles essential for a vibrant democracy and crucial to safeguarding freedom of expression and ensure that all voices are heard in the public sphere.

Every public organ, including the police, the executive at both national and county levels, Parliament, county assemblies, the Judiciary, and other State organs, owe their existence to the people who stood up through protests to demand democracy, the rule of law, human dignity, human rights, and the sovereignty of the Kenyan people when they demanded the 2010 Constitution.

Protests and voting are among the few ways Kenyans can directly participate in their governance. The political class must never forget that the Constitution empowers the sovereign people of Kenya to directly have a say beyond the delegated power exercised by appointed and elected officials. It is in everyone's best interest to pay attention when Kenyans express concerns about issues that directly affect them.