Why proposed law on right to assemble, protest is impractical

Enjoyment of this bundle of rights has always been contentious. After the series of the occupy Parliament and MPigs demonstrations in 2013 against the greed of legislators feathering their nests in privileges and savvy perks at the expense of the poor, activists taking part in the demonstrations were arrested and arraigned.

In the Criminal Case No. 685 of 2013 Republic versus William Omondi and 16 Others, activists faced a myriad of charges, including taking part in a riot, breach of peace and cruelty to animals (for using pigs in the demonstrations). In refusing to take pleas, the suspects contended that they had notified the police of the demonstrations and were only exercising their constitutional rights, among others, of the right to assembly and demonstrations. They later sought to stop the intended prosecution through a reference of the questions to the constitutional court.

In the ensuing constitutional petition that went all the way to the Supreme Court, the judges found that any offense that is defined by its elements and particulars in law is good law, and as such it would not delve into a ‘blanket condemnation of the statutory provisions’ complained about.

Yet this draft law is an express limitation of the constitutional guarantees of the freedom of assembly and demonstrations in the Bill of Rights.

Limitations to the enjoyment of rights are, however, constitutionally permitted, though. The right to assembly, demonstrations, picketing and petition under Article 37 of the Constitution is not amongst the non-derogable rights recognised under sections 24 and 25 of the Constitution. Nevertheless, where any limitations occur, the Constitution has provided for a criterion that must be followed, amongst which is the fact that the limitation must only be to the extent that is reasonable and justified in an open and democratic society based on human dignity, equality and freedom.

The architecture of the Bill is bound to be fatal to its operations. It is the police who would still permit an assembly or a demonstration yet they are the same persons who would evaluate the conduct of the assembled and demonstrators and decide whether to bring it to a stop or not.

Currently, police simply trash notifications for meetings, especially during tense national debates or the general elections. Conferring appeals to police prohibitions in applications for meetings to the very precious and busy High Court’s judicial time as suggested by the Bill would just not hack it. It is impractical, and prohibitive in time and purpose.

Provisions of the Bill in several other areas build the charade of tranquility in public causes. Admittedly public assemblies and demonstrations should be peaceful. However, in several instances, the Bill removes the burden of maintaining law and order from the State to citizens, who choose to exercise the right to assembly and demonstrations. This is a contradiction of sorts. The State is not happy with dissent. Parallel views to State opinion will most likely face challenges that the new law can easily fabricate.

In the view of the draft law, organizations and persons taking part in an assembly or a demonstration would be severally and jointly liable for incidents of damage to property during the incident.

This Bill is therefore rush, short-tempered, reactionary and impractical. It ends up not just criminalising the right to assembly and demonstration, but also leaves protestors at the mercy of the non-demonstrators, in whichever manner its described. The draft law creates several vague offenses and penalties for conveners of demonstrations. Section 14 of the proposed law declares that a person shall not convene a public assembly with no or adequate notice (entirely redundant), and further that he shall not knowingly contravene or fail to comply with a condition of the notice to which an assembly or the demonstration is subject.

For the offenses, upon conviction, a fine not exceeding Sh100,000 or imprisonment of not more than a year is attached. The Bill does not purport to repeal or amend the Penal Code but recreates the offense of unlawful assembly that is defined and punished by the former. This is confounding.

All said and done, Article 37 of the Constitution is in a storm here. Hundreds of Kenyans have been in the court corridors on charges of unlawful assembly amongst other commonly preferred offenses often brought against people arrested during street demonstrations and meetings.

Law enforcement agencies despise public protests and assemblies despite the common democratic good that as a country we have drawn from them. Too many innocent people are killed and harmed during protests which goes unpunished so long as the epithet of law and order is drawn. 

In recent days, hi-tech surveillance is also used against demonstrators and their organizations. There is a problem but the suggested law does not address the situation at all. It is time that the Attorney General made a bold step to take over this Bill and revamp it into a more sensible law that would encompass Kenya’s responsibility within the international human rights compass on the right to peaceful assembly and equally address the local nuances on such a law, ensuring that it gives effect to the fundamental freedom and relevant provisions of the bill of rights.

Aluoka is an advocate of the High Court