In the case of Mohammed Aktar Kana versus The Attorney General, Justice Warsame opined, "This application is a clear indication that the security arms of this country have not tried to understand and appreciate the provision of this new Bill of Rights. It also shows yester-years impunity is still thriving in our executive arm of the government.’
To date, the execution of police duties during public demonstrations, strikes, pickets, assemblies and processions confirms Justice Warsame’s position. Despite the constitutional guarantee of the right to peaceful demonstrations, picketing and petition under Article 37 of the Constitution, the guarantee has been turned into a conditional administrative privilege granted by the State.
Tear gas, water cannons, truncheons and sometimes bullets have been the definitive lingo of the police vis-à-vis Article 37 of the Constitution. Notably, many fail to understand that the law obligates the State to observe, respect, protect and promote the rights of the citizenry. Most importantly, the police have a duty to positively embrace public demonstrations and pickets.
In performing their functions, the national security organs are constitutionally bound to ensure utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Article 37 of the Constitution, Article 21 of the International Covenant on Civil and Political Rights as well as article 11 of the African Charter on Human and Peoples' Rights, among other municipal and international legal instruments, guarantee the right to peaceful demonstrations.
They further moat the demos from state disruptions and interference, guaranteeing state protection to the demonstrators and picketers. The state is legally tasked to ensure there is protection of the demonstrators’ human rights and fundamental freedoms.
This is due to the fact that the demonstrations are an execution of a well-articulated legally guaranteed human right. The assurance of police protection during public demos is further buttressed by Section 5 of the Public Order Act which requires prior notification for security providence and not as a mode of permission seeking.
In the unlikely event that lawful demonstrations turn violent, the police have no duty to inhumanly manhandle the demonstrators. The National Police Service Act (Section 61) obligates the police to first pursue all possible non-violent means within their disposal. They are only permitted to use force in the event that non-violent means are ineffective and without any promise of achieving the intended result.
It is noteworthy that the force applied, if at all, must be proportionate to the pursued legitimate objective, the seriousness of the offence and the resistance of the respondent demonstrator. Furthermore, in the event of any injuries caused, the police should provide medical assistance to the victims, inform their relatives of the same and report the incident to the Independent Police Oversight Authority for further investigations. Unfortunately, the practice has been the inverse of law. The police have failed to take up their legal obligations and in favour of violent means.
However, as observed by Justice Joseph Onguto in the case of Ferdinand Ndungu Waititu and four others versus Attorney General and 11 others, the right to demonstrate and picket is not absolute. But in the event it has to be limited, the limitation must satisfactorily meet the set human rights’ limitation criteria under article 24 of the Constitution.
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To this end, there is need for more legal education to the police as regards their obligations during demonstrations, when to use force against the public and the balance between the observance of human rights and public order.