Why Passaris' Bill on public demos is unconstitutional

Gen-z youths in Kitengela protest to mark one year since their colleagues were killed as they protested Finance Bill 2024. [ Jenipher Wachie, Standard] The Public Order (Amendment) Bill 2025, proposed by Nairobi Woman Representative Esther Passaris, purports to refine the regulation of public demonstrations in Kenya. However, beneath its bureaucratic language lies a serious threat to the democratic freedoms enshrined in the Constitution, particularly Article 37, which guarantees every person the right to peaceably and unarmed, assemble, demonstrate, picket, and present petitions to public authorities. This right forms one of the cornerstones of any democratic society. It empowers citizens to express grievances, demand justice, hold leaders accountable, and participate in shaping public discourse. The proposed amendments, unfortunately, operate not to enhance but to stifle this essential freedom through disproportionate limitations and administrative overreach. Central to the Bill is the proposed creation of "assembly and demonstration zones," where all public meetings and processions must be held. This concept, introduced under the new Section 5A, grants Internal Security Cabinet Secretary the authority to designate such zones in cities and urban areas, supposedly in consultation with county governments. While this may appear as an effort to organise and secure demonstrations, in reality it imposes a geographic restriction where citizens can protest. By confining lawful assembly to government-designated zones, the Bill limits the effectiveness of protests that are intended to confront institutions directly such as the National Assembly, a Cabinet office, or a county headquarters. Demonstrating in a park miles away from the seat of power dilutes the symbolic and strategic significance of public expression, thus undermining the democratic function of protests. Furthermore, Section 5B prohibits any public meeting or procession within a 100-metre radius of Parliament, court buildings, or protected areas. The result is a blanket restriction that preempts context or necessity. This provision fails the test of proportionality required under Article 24 of the Constitution, which states that a right or fundamental freedom may only be limited by law to the extent that the limitation is reasonable and justifiable in an open and democratic society. Instead of narrowly tailoring limitations to specific security risks or operational constraints, this clause arbitrarily criminalises peaceful proximity to power. Demonstrations outside Parliament or the Judiciary can be critical in influencing policy or highlighting miscarriages of justice. To criminalise such expressions through fines or jail terms up to three months is to criminalise dissent itself. The Bill also introduces a troubling redefinition of "public meeting" and "public procession." The new definition includes any gathering of two or more individuals in a public space supporting or opposing any person, government, or cause. The implication is that even two friends holding signs in a public square, or walking together with a common message, fall under the regulatory arm of the police and may require prior notification. This absurd expansion turns spontaneous civic behaviour into a regulated event, blurring the line between everyday expression and formal protest. Notably, these amendments could make it increasingly difficult for citizens to engage in impromptu or small-scale civic actions without the fear of legal consequences. At the heart of these problematic amendments lies the excessive delegation of power to the CS. The Bill empowers the CS to designate protest zones, yet offers no criteria, procedures, or accountability mechanisms for such designations. This opens the door to arbitrary or politically motivated decisions, where the executive can determine where and how dissent may occur. Such broad authority must be approached with the greatest caution, especially in a country where civic space has historically been restricted through executive fiat. The Bill's own memorandum acknowledges that it may limit the right to assemble, picket, and demonstrate. Yet it fails to justify how these limitations meet the strict standards of Article 24, which requires that any restriction be reasonable, necessary, and proportionate. Moreover, the Bill does not cite any compelling crisis, security failure, or systemic flaw in the current Public Order Act that necessitates these sweeping changes. Instead, it introduces a series of preemptive limitations on rights, driven more by a desire to control than to protect public order. Kenya's democratic evolution has been marked by decades of struggle to expand civic space, from the era of one-party rule to the promulgation of the 2010 Constitution. The right to protest has been central in campaigns for justice, electoral integrity, and social equity. The proposed Bill threatens to reverse those gains by creating a legal framework where dissent is corralled, criminalised, or silenced. It normalises restrictions that go far beyond what is justifiable in a democratic society. During past political crises, public order laws were invoked to arrest opposition leaders, disperse peaceful protests, and silence the media. The current Bill risks reviving that authoritarian tendency by equipping the State with tools that are ripe for abuse. In its current form, the Public Order (Amendment) Bill 2025, violates the spirit and letter of the Constitution. It imposes vague, arbitrary, and unjustified limits on a fundamental freedom. Parliament must reject or substantially amend the Bill to ensure that it aligns with Kenya's democratic values and constitutional order. The cure for public disorder must never be the silencing of the public. If passed in this form, the same would die in a similar fashion as was the Security Laws Amendments Act of 2016 sponsored by the then Majority Leader Aden Duale to tame the CORD protests, a five-judge bench declared the amendments a nullity. We cannot be passing amendments to tame temporary political opinions.

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