Constitutional experts have faulted Interior Cabinet Secretary Kithure Kindiki's plan to tighten the law governing public demonstrations, terming them unconstitutional.
Earlier this week, Prof Kindiki unveiled 10 proposed amendments to the Public Order Act and Statutory Instruments Act to, among others, limit the number of protesters or picketers at any given occasion and holding them responsible for and payment of, damages to those harmed by activities of assemblers, demonstrators, picketers or petitioners.
While noting that Article 37 of the Constitution gave Kenyans the right to assemble, demonstrate and picket, the CS cautioned that security agencies would do "everything within the law to protect the lives and property of non-protesters, who also have equal rights to go about their nation-building activities without intimidation or the threat of harm."
But lawyer Morara Omoke says they will limit the democratic space provided for under Article 10 of the Constitution.
"The proposals are unconstitutional because they seek to introduce limitations not captured by the supreme law and unless the courts don't maintain their independence, the proposals will be thrown out," averred Omoke.
He further noted that, if adopted, the proposals would only fuel further protests given that those picketing will find more reasons to demonstrate against the government.
Omoke sought to know, for instance, which authority would determine the number of people to picket; the police, the electorate, or the State? And how exactly the number would be determined to participate at a given occasion.
"Those proposals have gaps because whereas they focus on picketers and demonstrators, they have not clearly set out how government officials who, in retaliation, spark violence -either through their utterances or direct involvement as was the case with the Northlands farm invasion- will be held to account," added Omoke.
Constitutional lawyer Bobby Mkangi similarly argued that the proposals teetered on the unconstitutional and a debate needed by Kenyans is needed to determine whether to amend or implement them.
He is, however, convinced that the proposals were largely anchored in law save for those that called for limiting the number of people to picket and requiring protesters to agree on picket and petition zones.
"If the proposals are adopted as they currently are with some contentious provisions, they will eventually diminish the ability for Kenyans to hold demonstrations. The law as currently constituted is reasonable and facilitates demonstrations in a peaceful manner but if we add any more limitations we are sadly killing our right to picket," asserted Mkangi.
Demarcation of zones
Kindiki had emphasised that they would provide for legal action around assemblies, demonstrations, pickets, and petitions; including notification procedures; duties of security agencies to protect the rights of those participating, and demarcation of zones for such activities.
The CS explained the government seeks to outline the duty of public agencies and institutions to set aside a zone for persons who wish to present petitions to public authorities, as well as the duty of organisers of assemblies, demonstrations, pickets, and petitions to provide the hours, routes and other relevant information to assist law enforcement agencies to escort them and provide them with security.
The government further seeks to regulate consent requirements from persons whose activities are likely to be affected by assemblers, demonstrators, picketers, and petitioners; as well as the obligations of the organisers.
This, Kindiki said, is aimed at ensuring the activities remain peaceful, unarmed, and generally within the law including compliance with the duty not to infringe on the rights of others.
"Presently, it is not feasible for security organs to allow masses of people to roam streets and neighborhoods of their choice carrying stones and other offensive weapons while chanting political slogans and disrupting the daily activities of others," he added.