Last week, the National Assembly rejected a bill that sought to curtail the right to protest, which is a right that has serious implications on freedom of expression, association and political rights. The crux of the amendment bill introduced by Ruiru Member of Parliament Simon King’ara was that it sought to criminalise protests that end up in violence.
Specifically, clauses 11A and 11B criminalise causing grievous bodily harm, loss of property and loss of earnings and imposes a prison term not exceeding six years, a fine not exceeding Sh100,000, including an order for compensation to benefit the person who was hurt or lost earnings during a civil action.
On the face of it, the intention of the bill looks sensible. However, experts caution that it ignores certain fundamental nuances on the nature of the right to assemble, protest, picket and demonstrate peacefully. Fundamentally, it places more responsibility on the organisers of protests while seeking to protect third parties.
But the sponsors of the bill may have gone too far in so far as they did not take into account the unique nature of the right to protest; the transformative role that protests play in any democratic society; and the unique history that protests have played in Kenya and globally.
Largely, the bill remained silent on two issues: First, it does not address spontaneous assemblies and processions that happen organically for one reason or another. Second, it does not address the use of unlawful force by law enforcement while policing protests, especially as we head towards a referendum this year and a general election next year.
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In every election cycle, there has been a spike in police killings and assaults during public order operations. In light of this, it would make sense for Parliament to look into legal changes that will enhance command and individual responsibility by law enforcement instead of seeking to further criminalise the right to peaceably assemble, which is enshrined in law. It is noteworthy that the proposed law does not lay similar emphasis on police conduct such as the use of excessive force during protests.
Besides, nothing prevents a police officer from arresting and charging a person assaulting others, stealing, destroying property or any other law. These are already penal provisions that are actionable by the police.
According to Article 37 of the Constitution, the right to assemble or protest has a precondition of being peaceful and unarmed by the users. Be that as it may, peaceful protests sometimes break down or escalate into violence for various reasons, including provocation by counter-protesters or unprovoked violence on the part of law enforcement, or infiltration by criminal elements.
The issue of maintaining peace and order during protests or large public gatherings is very dynamic and complicated. I have always struggled to explain the error of the notion that “your rights end where mine begin” or vice versa. The truth is, some rights allow you to be offensive or to inconvenience others.
The very nature of the right to protest, as a form of expression, is that it allows us to disagree or offend others within the law as dictated under Article 33, which gives us the right to seek, receive and impart ideas without frontiers and also cautions against hate speech, incitement to violence, and advocacy for hatred. It is loudly silent about content that disturbs, offends and insults. Additionally, the act of protesting itself inconveniences others by causing traffic jams and limiting access to certain buildings.
The use of streets and public spaces for assemblies and protests is just as legitimate as those driving, riding buses, jogging and selling wares. To claim that those who lose the day’s sales need to be compensated is implying that they have more ownership of the public space.
Going by Kenya’s past experiences with protests over the years, one can make a strong argument that every person’s rights, including protesters and third parties, are best protected when planners and police are in meaningful and constructive communication.
Notifications should be properly done, and police should take appropriate measures as per their training to maintain peace and order. Moreover, the authorities should be content-neutral to avoid instances where protests are blocked by duty bearers because of political or ideological differences.
Mr Kiprono is a Constitutional and Human Rights Lawyer. [email protected]