Freedom to demonstrate and picket may soon be curtailed if discussions in the bipartisan talks are anything to go by.
Rocked by several demonstrations less than a year of running government, the Kenya Kwanza regime through its representatives in the bipartisan talks committee is pushing to discuss ways of instituting a legal framework to regulate Article 37 of the constitution.
The Article gives every Kenyan the right peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
According to the suggestion, an organiser of a demonstration will be required to take responsibility of sorts for the outcome of the protest.
Speaking during the first meeting at Bomas, Kakamega Senator Boni Khalwale said the suggestions are meant to, “...regulate the conduct and assignment of responsibilities to different parties, including organisers of demonstrations,” said Khalwale.
According to the Public Order Act, a person intending to convene a public meeting or a public procession shall notify the regulating officer of such intent and disclose the proposed date of the meeting or procession, the proposed site of the public meeting or the proposed route in the case of a public procession.
“The organiser of every public meeting or public procession or his authorised agent shall be present throughout the meeting or procession and shall assist the police in the maintenance of peace and order at the meeting or procession,” reads the Act.
Similarly, the organiser of any excluded meeting may request the regulating officer that the police be present at such meeting to ensure the maintenance of peace and order.
According to constitutional lawyer Bobby Mkangi, “Inasmuch as the country realised a new constitution in 2010, errors of the Moi era, which the Constitution was meant to repair, still abound. A case in point are the recent maandamanos. What were supposed to be the constitutionally designed peaceful protests turned out to be a front for the state to violently clamp down on protestors (or pretenders) and for thugs (the pretenders) to infiltrate demonstrations in order (or disorder?) to destroy, maim, steal and rob.”
Mkangi says the law as is sufficient to facilitate peaceful demonstrations but the political environment “has no intention of having peaceful protests”.
“It is the same law that’s used for public rallies which pull in thousands of people without incidents of widespread violence,” said Mkangi.
“It can be done even in the current framework. It seems the intention is not to have demos and make it seem like the framework is sufficient,” adds the lawyer.
Mkangi contends that there is no incentive for the government and opposition to have peaceful demonstrations.
“What if they (the government) facilitate peaceful demonstrations and find hundreds of thousands of people in the street demonstrating against their administration?” he wonders.
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Having been part of the constitution-making team, Mkangi argues that the primary responsibility as far as the right to demonstrate is concerned lies with the state.
“In as much as every right holder has a responsibility, the responsibility cannot be swung so that the right holder is also the duty bearer. The state’s job is to facilitate the enjoyment of this right,” said Mkangi.