Why we badly need laws that will safeguard our inalienable rights

Pupils run past anti-riot police officers after they were caught up in Azimio la Umoja protests in Mathare North on March 30, 2023. [Boniface Okendo, Standard]

Opposition demonstrations that rocked the country were met forcefully by a government determined to maintain law and order in a difficult economic environment.

Inevitably, the mass action resulted in confrontations between police officers and demonstrators with each side blaming each other for the ensuing violence.

Unbowed, the opposition blamed the government for the violence arguing that the right to demonstrate is enshrined in the Constitution and Kenyans are entitled to defend interference with this democratic tradition.

On its part, the government argued that freedom of expression is not absolute and every administration is mandated by the constitution to protect lives and property. Hardline Kenya Kwanza supporters even questioned the legitimacy of the demonstrations claiming the opposition was merely seeking ways to wangle their way into government through the back door.  

Excepting the slum areas in Nairobi that were toured by opposition caravans and regions where Azimio has a fanatical following, most of the country shrugged off the demonstrations and went about their normal business.

Notwithstanding this limited spread, the demonstrations resulted in wanton looting and destruction of property on the days of demonstrations. There were also business disruptions in the cities of Nairobi and Kisumu resulting in heavy loses in an already depressed economy.

Considering that the opposition has threatened to call more demonstrations, the question Kenyans must ask themselves is whether the benefits of allowing citizens to exercise their democratic rights outweigh the cost of allowing the demonstrations to go on.

Looting spree

While freedom of expression is a basic human right, at what point does the government intervene to protect the rights of Kenyan citizens who wish to open their business without fear of being looted?

At what point does the government move in to stop the demonstrations so that children can walk to school without having to dodge bullets and stones.

In principal, democracy allows citizens to exercise individual freedoms as long as in doing so they do not infringe on the right of others to do the same.

Many democracies and even treaty bodies have however put in place laws that restrict individual freedoms by applying what is called the principal of proportionality test. The proportionality test essentially demands that any interference with freedom of expression can be justified if the benefits for denying free expression outweigh the cost.

According to Article 19(3) of the international covenant on civil and political rights (ICCPR), freedom of expression can be restricted in order to protect individual rights and reputation.

Additionally, the article allows a government to restrict individual freedoms where national security or public order, public health or morals are threatened. Most jurisdictions in Europe as well as treaty bodies such as the United Nations Human rights committee also apply the proportionality test to limit individual freedoms. The European Convention on Human rights sanctions limitation of freedom of expression in order to prevent civil disorder and criminal activity.

Like many African countries, Kenyans independence and individual freedoms were birthed by gallant citizens who sacrificed their lives and comfort to achieve the civil liberties that are enjoyed by citizens today.

Given this proud tradition of standing up for their rights against repressive governments, many Kenyans have never considered the other side of equation: that those exercising their freedom can also exceed their limits.

Yet after an election which was relatively fair and where the opposition was given ample opportunities to make a case to overturn the results within our constitutional framework, the time is nigh to interrogate the limits to freedom of expression especially when the stability of the nation is threatened. 

Police provocation

To justify its actions, the opposition keeps referring critics to section 37 of the Kenyan constitution which states that “every person has the right, peaceably and unarmed to assemble, to demonstrate, to picket and to present petitions to public authorities”. The opposition has also defended the ensuing violence as the consequence of provocation by the police.

However, even if one was to concede the argument that demonstrators have a right to defend themselves against police brutality, the opposition would be hard pressed to defend looting of businesses and destruction of private property by the mobs. The limit to freedom of expression is clearly delineated in Section 33 (3) of the constitution which states that “in the exercise of the right of freedom of expression, every person shall respect the rights and reputation of others”.

As a libertarian, it is painful to give a government any excuse to interfere with the rights of citizens to exercise their inalienable rights. However, the violence and destruction witnessed in the last few months shows Kenyans have good reason to enact laws to protect their inalienable rights from a government that raids private farms as well as a rogue opposition that incites violence for selfish reasons.