Constitutional experts have criticised the proposed Maandamano Bill that seeks to regulate protests.
The Bill by Mbeere North MP Geoffrey Ruku seeks to have conveners of protests held liable for any damage to property or loss of lives.
It proposes that conveners be held liable for the damage caused during riots and those participating in illegal protests be imprisoned for a year.
Lawyer Morara Omoke however said that the Bill if approved would limit the rights of protesters.
“From a legal standpoint, the proposed Bill would perpetrate the limiting of rights which is not permitted under the constitution. We already have laws under the Penal Code that address how to deal with those who destroy property,” said Omoke.
He also took issue with the proposal for a one-year jail term for engaging in illegal protests noting that it should be reviewed because the term ‘illegal protests’ was subject to different interpretations.
“If that Bill is passed in Parliament, I’m sure it will be struck down by the courts for being unconstitutional in that it limits people’s rights. You cannot arrest conveners because most protests are usually peaceful until the police arrive and provoke the demonstrators,” he added.
To deal with ‘rogue’ protesters, the Bill gives power to police to prevent the participants from proceeding to a different place or from deviating from the route specified in the relevant notice.
They will also have the authority to restrict the gathering to specific places to ensure that vehicles and pedestrians are not interfered with, an appropriate distance between the participants in the assembly and rival assembly is maintained and that those not interested in the protests access their properties and workplaces.
“…police shall have the power to order any participant interfering with demonstrations to cease and take such steps as may be necessary to protect persons and property,” further highlights the proposed law.
Constitutional lawyer Bobby Mkangi said holding conveners liable is in a way trying to pre-empt the outcome of demonstrations.
“This is a proposal that seeks to kill the intention of the constitution when it comes to picketing and demonstrations,” said Mkangi.
He emphasises that where there’s a breach of peace, and criminality, there are already laws to handle that.
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Ruku however believes that the Bill will tame the excesses of the demonstrations.
“By approving this Bill, we will have the legal framework to go after those that act outside the confines of the constitution and hold them accountable,” he added.
The Bill further outlines prohibitions for picketers such as that requiring that they do not wear any form of apparel that resembles any of the uniforms worn by security forces including the police and Kenya Defence Force, possess any offensive weapons or wear any apparel or item which obscures his face or prevents his identification.
“A person shall not by way of banner, placard, speech or singing or in any other manner incite hatred of other persons on account of differences in culture, race, sex, language or religion,” adds the bill.
The proposed law also puts on notice those that convene a public assembly with no or inadequate notice.
“Any person who knowingly contravenes or fails to comply with the notice of a condition to which a demonstration is subject to, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a period not exceeding one year, or to both,” states the proposed Bill.
Kenyans wishing to demonstrate will also be required to notify the authorities at least three days but not more than 14 days before the proposed date of demonstration with the notice required to specify the proposed site of demonstrations or route in case of a public procession.