There’s power and value in the right to protest

A boda boda operator rides past a bonfire along the Kasarani-Mwiki road.

Last week, residents of Kasarani and Mwiki in Nairobi protested to express dissatisfaction with the state of their roads. The protests were violently dispersed by the police, resulting in one death and several injuries. That was a disproportionate use of force on the protesters. 

Nairobi Senator Johnston Sakaja later convened a meeting with the Kenya Urban Roads Authority and the Nairobi City County to deliberate on how to address the issues raised by Kasarani residents. In no time, Sh300 million was secured and released immediately for work on the road to commence.

Essentially, the protestors were effective. Unfortunately, the price, in terms of one death and several injuries was unnecessary. Historically, protests have inspired positive social change and the advancement of rights.

They enable individuals and groups to express dissent and grievances, share views and opinions, expose flaws in governance, and publicly demand that authorities address the issues.

The right to protest, which compliments freedom of expression, right to information, freedom of association and the right to public participation - is a good indicator of the health of a democracy.

The ability to freely exercise these rights points to a governing class that is responsive and sensitive to the concerns and aspirations of citizens.

New law

In the late 1990s, the government and the opposition formed the Inter-Party Parliamentary Group to come up with legal reforms that were crucial to a free and fair election and democracy. One of the laws that were amended was the 1952 Public Order Act, specifically the requirement that organisers of rallies, assemblies, marches or processions needed to apply for a permit from the police. The new law only required organisers to notify the relevant police station.

Like many other rights, the right to peaceful assembly is not absolute. It is subject to some limitations. For instance, if you deliver a notification and the police discover that someone else had booked the same road or public space, the police will notify you the venue is booked,thus unavailable for your use. Police may advise you to change the venue or date of your planned procession.

Another situation that may limit your ability to stage a protest may include situations where the police have information that someone is planning violence during the place and time listed in the notification.

Organisers are required to be present throughout the meeting or procession and they are to assist the police in the maintenance of peace and order.

During an ongoing protest, a police officer above the rank of Inspector is empowered to make a proclamation to call off the protest in the event that in his judgment, there is clear, present or imminent danger of a breach of peace or public order.

Observers have pointed out that in practice, this provision is abused by the police because often, police halt protests because of ‘orders from above’.

Individual offenders

The Constitution requires all public and state officers, including the police to observe, respect, promote and fulfill fundamental freedoms, including the right to protest.

Ideally, police officers should be independent and content-neutral, as long as what is being advocated for is not illegal.

It is a challenge to achieve the correct balance between individual rights and police’s obligation to maintain public order and safety as well as to protect the rights of others.

Police are obligated to individually and collectively act in a professional and disciplined manner.

They should be trained and advised to use only the minimum level of force necessary to deal with any instances of violence or lawbreaking by demonstrators and endeavour to target individual offenders without affecting the rights of bonafide protestors.

The police should be furnished with weapons and ammunition that are non-lethal and incapacitating firearms such as rubber bullets and tasers to be used before more formidable force is utilised. Often in, live bullets are in play throughout protests.

Expressing concern, dissatisfaction or contrary opinion collectively should not be a dangerous affair. Kenyans and law enforcement need to come together and be sensitised on the rights and obligations of protestors as well as the police.

Mr Kiprono is a Constitutional and Human Rights Lawyer. [email protected]