Will MPs pass yet another unpopular Bill limiting the right to demonstrate?

Plainclothes police officers bungle a protestor into a car during anti-government demonstrations along Moi Avenue on July 16, 2024. [Kanyiri Wahito, Standard] The National Assembly, the institution that plunged the country into the current crisis through its passing of the unpopular Finance Bill 2024, has yet another anti-people business before it. When it reconvenes early next week, the list of business before it includes debating The Assembly and Demonstrations Bill, 2024 - a private member's motion sponsored by Mbeere North MP Geoffrey Ruku. In light of the recent anti-Finance Bill demonstrations, maybe it is an opportune moment to discuss the draft law that touches on the right to assembly and demonstrations in Kenya. The fundamental right is anchored in Article 37 of the Constitution 2010 as follows; 'Every person has a right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities'. Enjoyment of this bundle of rights has always been contentious. After the series of the occupy parliament and MPigs demonstrations in 2013 against the greed of legislators feathering their nests in privileges and savvy perks at the expense of the poor, activists taking part in the demonstrations were arrested and arraigned in court. In the Criminal Case No. 685 of 2013 Republic versus William Omondi and 16 Others, activists faced a myriad of charges, including taking part in a riot, breach of peace and cruelty to animals (for using pigs in the demonstrations). In refusing to take pleas, the suspects contended that they had notified the police of the demonstrations and were only exercising their constitutional rights, among others, of the right to assembly and demonstrations. They later sought to stop the intended prosecution through a reference of the questions to the constitutional court. This far, it is the Public Order Act (Cap 56) that remains the framework for the enjoyment of the right to assembly, demonstrations and picketing, but the law is quite contentious. It is the product of the oppressive colonial statute used against the Mau Mau freedom fighters in the early 1950s when Kenyans were fighting the British imperialists. Since then, the law has hardly been overhauled to get it in tandem with the modern democratic reality. The law still places demonstrators at the mercy of the state and the police. In effect, it continues to muzzle civil life on multiple fronts. In the ensuing constitutional petition that went all the way to the Supreme Court, the judges found that any offence that is defined by its elements and particulars in law is good law, and as such it would not delve into a 'blanket condemnation of the statutory provisions' complained about. Yet this draft law is an express limitation of the constitutional guarantees of the freedom of assembly and demonstrations in the Bill of Rights. Limitations to the enjoyment of rights are however constitutionally permitted, though. The right to Assembly, demonstrations, picketing and petition under Article 37 of the constitution is not amongst the non-derogable rights recognized under sections 24 and 25 of the Constitution. Nevertheless, where any limitations occur, the constitution has provided for a criterion that must be followed, amongst which is the fact that the limitation must only be to the extent that is reasonable and justified in an open and democratic society based on human dignity, equality and freedom. The architecture of the Bill is bound to be fatal to its operations. It is the police who would still permit an assembly or a demonstration yet they are the same persons who would evaluate the conduct of the assembled and demonstrators and decide whether to bring it to a stop or not. A simple and transparent process of notification for assemblies would have been required to revamp the law. For example, a Registrar of the Notices would have domiciled with an independent body such as the Kenya National Commission for Human Rights (KNCHR) or the Ombusman's office. This would probably work better than notifying policemen who literally must look over their shoulders before granting the approval. In fact, the process of assembly notifications is a labyrinth of impossibilities. A police station may decline service, or the authorized officer would flee from the station when required to take the notices. There are no registers of notices, nor any prescribed forms that would simplify the procedure. Such modifications could be made through subsidiary regulations in such a law. Currently, police simply trash notifications for meetings, especially during tense national debates or the general elections. Conferring appeals to police prohibitions in applications for meetings to the very precious and busy High Court's judicial time as suggested by the bill would just not hack it. It is impractical, and prohibitive in time and purpose. Magistrates' courts have certain levels of jurisdiction over the enforcement of the Bill of Rights. The magistrate's courts are accessible country-wide. Probably the jurisdictional scope of the magistrate's courts could be expanded instead of conjuring up the strange appeal system as proposed under Section 8 of the draft law. This pathway is self-strangulating and portends nothing but cheap drama for future users. Provisions of the Bill in several other areas build the charade of tranquillity in public causes. Admittedly public assemblies and demonstrations should be peaceful. However, in several instances, the Bill removes the burden of maintaining law and order from the state to citizens, who choose to exercise the right to assembly and demonstrations. This is a contradiction of sorts. The state is not happy with dissent. Parallel views to state opinion will most likely face challenges that the new law can easily fabricate. In the view of the draft law, organizations and persons taking part in an assembly or a demonstration would be severally and jointly liable for incidents of damage to property during the incident. The sad but familiar attitude in Section 12 of the Bill must have greatly drawn inspiration from the philosophy espoused in the undefended constitutional petition of Ngunjiri Wambugu v Inspector General of Police, & 2 others [2019] eKLR. In the stated judgement, the court relied on the South African Public Gathering Act, yet the history of the two countries is quite parallel. In the South African experience, the scarecrow liability provision was certainly the input of wealthy white forks protecting their private enterprises from interference by the black freedom fighters. The liability noose is a hoopla. It means on one side that the police can look the other way during street chaos only to arrive to effect the clause. It is the kind of open cheque for infiltrators, saboteurs and conmen who can fake protests and damages; it would be fodder for state blackmail and the classic claw back to the right itself. Simply, if protesters owe due care to the unknown people and property in the world, you simultaneously have them in the corner at both civil and criminal law. This bill is therefore rushed, short-tempered, reactionary and impractical. It ends up not just criminalizing the right to assembly and demonstration, but also leaves protestors at the mercy of the non-demonstrators, whichever manner it is described. The draft law creates several vague offences and penalties for conveners of demonstrations. Section 14 of the proposed law declares that a person shall not convene a public assembly with no or adequate notice (entirely redundant), and further that he shall not knowingly contravene or fail to comply with a condition of the notice to which an assembly or the demonstration is subject. Also under the proposed law, a person shall not hinder, interfere with, obstruct or resist a police officer, a convenor, a marshal or any other person in the exercise of his powers or the performance of his duties. Possession of a weapon or any object unlawfully during a protest is not allowed. For the offences, upon conviction, a fine not exceeding 100,000/= or imprisonment of not more than a year is attached. The Bill does not purport to repeal or amend the Penal Code but recreates the offence of unlawful assembly that is defined and punished by the former. This is confounding. All said and done, Article 37 of the constitution is in a storm here. Hundreds of Kenyans have been in the court corridors on charges of unlawful assembly amongst other commonly preferred offences often brought against people arrested during street demonstrations and meetings. Others can be rioting, breach of peace etc. The situation is untenable for a constitutional democracy like Kenya. The law-and-order apparatus enjoy too much leverage in deciding how this fundamental human right operates and the suggested law does address these challenges. In the meantime, the police keep turning tables on demonstrators wherever they can add trumped-up charges on them during arraignments. The list includes damage to property or refusing to obey lawful orders. Law enforcement agencies despise public protests and assemblies in spite of the common democratic good that as a country we have drawn from them. Too many innocent people are killed and harmed during protests which goes unpunished so long as the epithet of law and order is drawn. During high-profile protests, DCI officers, for instance, largely plain-clothed police, carried away suspects across several police stations with little opportunity for accountability. It is by luck that some of them are ever found after that. What roles do police units play in lawful protests? Assemblies are still manned or crushed with loads of armoury and poisonous tear gas. In recent days, hi-tech surveillance are also used against demonstrators and their organizations. There is a problem but the suggested law does not address the situation at all. It is time that the Attorney General made a bold step to take over this Bill and revamp it into a more sensible law that would encompass Kenya's responsibility within the international human rights compass on the right to peaceful assembly and equally address the local nuances on such a law, ensuring that it gives effect to the fundamental freedom and relevant provisions of the bill of rights. -Aluoka is an advocate of the High Court of Kenya

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