Proposed law seeks to give police powers to outlaw demonstrations

When Azimio protestors lit bornfires along Isebania-Migori-Kisii highway on March 20, 2023, during their demonstration in Migori Town as they pretest over high-cost living. [Caleb Kingwara, Standard]

As Azimio la Umoja One Kenya mulls return to demonstrations, a new law could leave protests virtually at the discretion of the police.

A Bill by Mbeere North MP Geoffrey Ruku seeks to give the police the leeway to issue “conditions” to planners of demonstrations, which if unmet could see their assemblies prohibited.

The proposal is contained in Section 8 of the Assembly, Demonstration, Picketing and Petition Bill 2023, drafted by Ruku, that sets to establish an enabling framework for Article 37 of the Constitution, which safeguards the right to peaceful picketing and protests.

Among the conditions include public safety, maintenance of public order, and the protection of rights and freedoms of persons. Other conditions are payments for cleaning costs that may arise from the demos and the recognition of “any inherent environmental or cultural sensitivity of the place of assembly or demonstration.”

“The application to the place of assembly or demonstration of any resource management practice of a delicate nature,” reads another condition.

The Bill further empowers the police to outlaw demonstrations, a role which is a preserve of the courts. Similar to the provisions of the Public Order Act, a person who shall participate in such an unlawful demo shall be liable to imprisonment for one year.

“Where a condition is imposed under section 8, or where an assembly or demonstration is prohibited, the convener may apply to the High Court to set aside or vary such condition or to set aside such prohibition and the judge may refuse or grant the application,” states Section 9 of the Bill that is heavily restrictive on protests.

“This is an attempt to amend the Constitution through the backdoor,” Makueni Senator Dan Maanzo said in an interview on TV. “There are other Acts of Parliament dealing with it (demos)... there is the penal code and the Public Order Act.”

Ruku states that the Bill, which comes hot on the heels of proposed regulations by Interior Cabinet Secretary Kithure Kindiki, seeks to recognise the right of peaceful assembly and to reasonably restrict the same in ensuring public safety, public order and the protection of the rights of others.

“We have a responsibility to ensure that this country is good for us, whether in opposition or in government,” the MP defended his proposal that would help curtail violent protests. If Ruku’s Bill sails through Parliament, the Interior CS shall have the power to make regulations on demonstrations, which he currently enjoys through parliamentary approval. 

“The authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and to fulfil the objectives specified under this section; and the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provisions Act and the Statutory Instruments Act, 2013,” states the Bill.

Kenya is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21, governs the right of peaceful assembly and provides that no restrictions may be placed on the exercise of the right to assemble other than those imposed in conformity with the law. These are necessary in a democratic society in the interests of national security or public safety, or the protection of the rights of others.

The police may prevent an assembly if another person or group already takes the date, time, and venue proposed by the organisers, with a public assembly held in violation of its provisions being an unlawful assembly.