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Judge directs on laws for demonstrators to pay for cleanup and losses

By Kamau Muthoni | August 8th 2019
Residents of Makima Ward in Embu County protesting the refusal by Tana and Athi Rivers Development Authority to grant way-leave for laying of water pipes on its land on Tuesday. [Joseph Muchiri, Standard]

A court has ruled that anyone demonstrating will now shoulder the costs for cleanup and destruction. 

In a verdict that now makes street protests somehow peaceful and orderly, those picketing will also be required to seek consent from persons adjacent to the demonstration zones in which organisers will be penalised in the event they go against the agreements.

High Court judge James Makau in his judgment, observed that Kenya’s demonstrations should be like those of Australia and South Africa where organisers will be required to shoulder responsibility of what happens in the streets.

When seeking police permit to demonstrate, the judge said, organisers will be required to give the maximum number of people to be in the streets and they will be confined in a particular designated area.

Meanwhile, the police will be at liberty to stop demonstrators if they are armed with any form of weapon including stones. 

The judge directed the Interior ministry and the Attorney General to formulate a code of conduct for conveners of demonstrations.

“It is trite law, that rights can only be enjoyed to the extent that they do not interfere with other people’s rights. Constitutional rights and freedom of the individual are subject to limitations and are not absolute as they are designed to ensure that they do not prejudice the rights and freedom of others or public interest as all parties’ rights should be treated equally,” ruled Justice Makau.

In the code, the judge said, the State will be required to address who will be held liable for loss of life or an injury.

He said that regulations should also incorporate mechanisms of how any aggrieved member of the public should raise their concern and how grievances should be resolved.

Justice Makau in a case filed by Nyeri lawmaker Ngunjiri Wambugu seeking directions on how demonstrations should be handled, observed that although Kenyans are entitled to picket as a way of expressing themselves, this ought to be balanced with rights of those who are not participating.

“I am a live to the fact that the petitioner is not asking the court to amend, legislate or otherwise encroach duties of any arm of the government but rather that the court should order legislation to be enacted to give effect to the Bill of Rights and as far as the limitation on the freedom of assembly is concerned,” he ruled.

In the verdict, the judge cited a case in Australia where a union defied orders not to picket. The organisers were fined $10,000 (Sh1 million) and were required to pay Sh2,000 (Sh200,000) each day the picketing remained.

Union defied

The fine escalated to Sh10 million after the union defied a second order.

If the fines are to be factored in, organising a demonstration might become an expensive affair, as the judge observed that such will ensure order.

“I have no doubt to state that we can rightly borrow a leaf from South African and Australian experience by developing regulations, which will enable the maintenance of law and order in this country during demonstrations,” ruled the judge.

In the case, Ngunjiri explained that during election protests in April 2016, properties were destroyed and people were injured.

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