Entrenching autocratic constitutional order

Entrenching autocratic constitutional order

How Supreme Court of Kenya gutted freedom of assembly and right to demonstrate    

By Walter Khobe

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reedom of assembly and the right to demonstrate are constitutionally entrenched in Kenya. The recognition of these twin freedoms in theory has not translated to substantive actualisation of the constitutional goal of ushering democratic governance and a culture of justification in our polity. Instead, a presumption of limitation of the freedom of assembly is the norm and all too often the right to protest is easily dispensed with at the altar of public order in continuation of the state organisation logic of pre-2010 Kenya that the celebrated historian E. S. Atieno-Odhiambo baptised as the “ideology of order”.     

As a starting point, it should be noted that the freedom of assembly and the right to demonstrate are part of the constituent elements necessary for the establishment of democratic societies. These rights encompass the essential rights inherent in a democracy to assemble, to demonstrate, to picket and to present petitions to public authorities. Also noteworthy is that these twin rights are closely associated with freedom of speech, expression, and association. Taken together, these rights/freedoms are held to be key to the functioning of liberal democracies as they enable citizens to gather and express their views without government restrictions.  

In order to usher in democratic governance in their polities, South Africa in 1996, and Kenya in 2010 wrote new constitutions that have come to be dubbed as “transformative constitutions” representing the “fourth generation” of constitutions in the African continent. To bolster the goal of giving effect to the foundational value of democratic governance entrenched in these two constitutions, the Bill of Rights in both constitutions entrenches the freedom and rights of peaceful assembly, demonstrate/picket and expression.         

It should be noted that it is not by accident that these “transformative constitutions” place a lot of premium on freedom of assembly, protest and expression. Both countries had a history and past of abuse and denial of these rights during the authoritarian colonial and post-independence (apartheid in the South African context) periods. The evolution of laws and practices relating to freedom of assembly in sub-Saharan Africa follows closely the political history of the region. During the colonial and post-independence (apartheid) period, freedom of assembly in the political sphere was restricted. Throughout sub-Saharan Africa, assemblies, processions and demonstrations were restricted by an array of laws including provisions of penal code relating to breach of peace, disorderly behaviour at public meetings, unlawful assembly, riot, and other offences against public tranquillity. The holding of processions and assemblies were subject to the requirement of obtaining permits, normally from the district commissioners or police officers; the relevant provisions gave wide-ranging powers to the police to break assemblies whether or not they had been authorised.

Given that these “transformative constitutions” prescribe a theory of interpretation of these constitutions, which is that courts should adopt a purposive approach to interpretation and advance the foundational values and principles of the Constitution, courts are expected to embrace a contextual approach to interpretation that ushers in democratic governance in the polity. A more demanding expectation devolves to the new apex courts, created as guardians of these new governance charters, as they are expected to serve as guardians of the value and principle of democratic governance that these rights seek to engender in their polities. 

The new apex courts recently, the Constitutional Court of South Africa in 2018 and the Supreme Court of Kenya in 2019, faced the question of the interpretation and application of the freedom/right to protest. While the Constitutional Court of South Africa delivered a landmark transformative judgment advancing the constitutional goal of entrenching democratic governance, the Supreme Court of Kenya delivered a retrogressive judgment that entrenches what E.S. Atieno-Odhiambo had decried as an “ideology/culture of order”.     

In determining whether the respective public order legislations concerning assemblies was contrary to the constitutional rights of freedom of assembly and expression, the questions before the two courts was very similar to a large extent with minor variations. The questions before the two courts may be categorised as being derived from three broad questions, namely: (1) whether criminalisation of assemblies hindered the enjoyment of freedom of assembly, protest or expression as guaranteed under the constitution; (2) whether the  impugned legislation had the effect of unjustifiably and unreasonably limiting rights including denying the essential content of the right to freedom of assembly, protest and expression; and (3) whether the impugned legislation was to be regarded as “not reasonably justifiable/proportionate” in a democratic and open society or in terms of the spirit of the constitution. 

Kenya – Hussein Khalid & 16 Others v AG & 2 Others, Petition No. 21 of 2017 

On 14 May 2013, the Appellants, Hussein Khalid and others took to the streets to protest the actions of Members of Parliament to inflate their salaries and benefits. This demonstration, dubbed “Occupy Parliament,” was dispersed by the police and the Appellants arrested. After being held at Parliament Police Station for five hours, they were informed that they would be charged with the offence of cruelty to animals contrary to the Prevention of Cruelty to Animals Act and were released on free bond. On arraignment, the Appellants were also charged with the offence of breach of peace and taking part in a riot contrary to the Penal Code.

The Appellants filed a petition to the High Court claiming their rights had been infringed upon because the trial at the Magistrate’s court was started and continued as a result of an illegal arrest; that the manner of arrest, detention and taking of plea was in violation of their rights and that some of the provisions they were charged under were unconstitutional for vagueness and lack of mens rea. The High Court dismissed the petition. The Appellants appealed this decision to the Court of Appeal, which was also dismissed.

Dissatisfied with the decision, they further appealed to the Supreme Court, which delivered a judgment on 18 October, 2019. On the first issue of whether the arrest, detention, and charging of the Appellants violated their constitutional rights under Articles 32, 33, 36,49, and 50 of the Constitution, the Court found that the freedoms of assembly, demonstration, picketing, and petition are not absolute rights. They held that these rights are justifiably limited in the Public Order Act and the Penal Code. Any determination of whether the limitation was illegal in this particular case is a factual issue to be determined by the trial court on a case by case basis. Additionally, any constitutional challenge to the Public Order Act would need to be pleaded with greater specificity to have any merit.

Turning to Article 49 on the rights of arrested persons, the Court found that the Appellants were promptly informed of the reason for arrest in the circumstances and that although “promptly” is not defined, Article 49(1)(f) provides a reasonable time of 24 hours within which an arrested person should be brought before a court. The Appellants in this case were charged and released within about 5 hours.  The Court also found that it is an acceptable practice for the prosecution to amend a charge sheet to include new charges or exclude others. It is not required that an accused person be informed of the offence immediately upon arrest and that the police only be able to proceed on that charge alone. However, the Court left questions relating to how the appellants were arrested to the trial court to determine.

In regards to Article 50 on fair hearing, the Court distinguished between a fair hearing and a fair trial. The right to a fair hearing speaks to the right to access a court of law that is independent and impartial. It was found that the Appellants have been able to access courts. The rights under Article 50(2) (j) to be informed in advance of the evidence the prosecution wishes to rely on and have reasonable access to the evidence, the Court held that these rights are to be enjoyed in the course of a trial. The Appellants must transform from “arrested persons” to “accused persons” to fall within the protection of this article. For this to occur, they must first take plea and let the trial process commence.

On the unconstitutionality of Sections 78(1), 78(2), and 94(1) of the Penal Code and Section 3(1) (c) of the Prevention of Cruelty to Animals Act the Court held that the Appellants did not submit on the constitutionality of the Prevention of Cruelty to Animals Act at either the High Court or Court of Appeal, therefore it was inappropriate for parties to raise new arguments at an appellate stage at the Supreme Court. For the constitutional challenge to Sections 78(1), 78(2), and 94(1) of the Penal Code, the Court found that the allegations were without merit. The ingredients of the offences are not vague and uncertain, and many cases set out what constitutes a breach of peace. A blanket condemnation of the provisions would be overreaching. Additionally, there is recourse in the civil justice system for an accused arrested and charged with an offence unknown in law.

Finally, the Court undertook an analysis of the role of the Magistrate’s Court in determining constitutional questions, as the said court declined to do so when the Appellants sought such a determination. Article 23(2) of the Constitution provides that subordinate courts only have jurisdiction to hear and determine constitutional questions if Parliament gives such jurisdiction through legislation. If not, the High Court is the court of first instance for such matters. As no such legislation was in place at the time that the Appellants were before the Magistrate’s Court, they were correct in declining to hear the petition.

The Court noted that the Magistrates Court Act, No. 26 of 2015, has since been enacted. This legislation provides clarity on the jurisdiction of the Magistrate’s Court. Under Section 8, the Court can hear and determine applications for the enforcement of certain limited constitutional rights.

The Court held that this judgment does not prevent the Appellants from seeking damages or other reliefs for specific violations that may have occurred in the manner of arrest, detention, and arraignment. The Court explicitly stated that they have recourse under Article 22. However, it was found that these allegations should not warrant vitiating the trial process.

Ultimately, the petition was disallowed with each party bearing its costs. This judgment of the Supreme Court was in line with the findings of the High Court and the Court of Appeal. The Appellants are to return to the Magistrate’s Court to face trial on the criminal matters.

The judgment in constitutional perspective  

First, on the Supreme Court’s decision on whether the arrest, detention, and charging of the Appellants violated their constitutional rights under Articles 32, 33, 36,49, and 50 of the Constitution. The Court found that the freedoms of assembly, demonstration, picketing, and petition are not absolute rights. It held that these rights are justifiably limited in the Public Order Act and the Penal Code.   

The Court failed to adopt any serious critique of the “reasonableness and justifiability” of the impugned statutes in terms of the command in Article 24 of the Constitution. The fact that Articles 32, 33, 36, 49, and 50 of the Constitution are not absolute does not mean that any law enacted by parliament limiting those rights passes constitutional muster as the Supreme Court’s lazy approach to the issue seem to argue. The courts are still required to undertake a thorough and rigorous analysis of the “reasonableness and justifiability” of the legislative enactment in question. Moreover, Article 24(1) of the Constitution demands that the court ascertain whether the limitation of the rights is by a law, which law must meet the test of legality. In addition, the court under article 24(3)(2) of the Constitution must ensure that such a legislation does not derogate from the core or essential content of the rights implicated in the dispute. This is an analysis that the Supreme Court fails to undertake.

The Appellants raised the question of the legality of the impugned legislation as to whether they are vague and do not satisfy the test of legality in article 24(1) of the Constitution. The Supreme Court failed to answer this question. The underlying question facing the court, therefore, was what was to be considered “law” within the terms of the constitution. A law that is too vague as to fail to give a clearly discernible indication of what is prohibited or not is not law. The European Court of Human Rights has, on a number of occasions, considered the meaning of the word “law” in the context of permissible restrictions to fundamental rights. In ‘Silver and others vs. The United Kingdom, Judgment of 25 March, 1983, A. 61, at 33 the court was of the view that:

“A norm cannot be regarded as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” 

Not only must the “law” be foreseeable but it also must be compatible with “the rule of law” in order to safeguard against arbitrary measures, so that where a discretion is conferred, adequate guidelines as to its exercise must be provided. The court proceeded to hold that:

“[A] law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”

As the court observed in the Silver case:

“One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual’s rights should be subject to effective control … This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers …” (at 30)

The Supreme Court, however, avoided a nuanced analysis of whether the impugned legislations met the test of legality in article 24(1) of the Constitution.  

On the next question on whether the impugned legislations were “reasonable and justifiable” in terms of Article 24(1) of the Constitution, the court failed to engage adequately with this question. Crucially, the Court was expected to engage in the “proportionality” analysis envisaged in article 24 of the Constitution. The requirement that the limitation envisaged in the impugned legislation must be reasonable means that such a mechanism must be no more than necessary to achieve the objectives of the legislation. The mechanism of enforcement used, in this case criminal sanctions, must be the least restrictive means available to the state to regulate public assemblies. In other words, any hindrance to assembly must be proportional to the legitimate aim pursued. 

If alternative means are available which properly address a permitted objective but which impinge on constitutionally guaranteed rights to a lesser extent than those contained within the impugned legislation then such legislation cannot be held to be “reasonably” required. It behoved the court to engage with the question as to whether under Article 24(1) (e) of the Constitution, use of criminal sanctions is the least restrictive means for regulating assemblies. This is important as criminal sanctions have been recognised as imposing a “chilling effect” on enjoyment of rights hence where alternative means of regulation of enjoyment of a right/freedom are available, then such alternative mechanisms ought to be explored before resort to criminal sanctions.         

The approach being canvassed in this commentary is evident in the decision by the European Court of Human Rights, in the cases of Oya Ataman v. Turkey (2007); and Bukta and others v. Hungary (2014) where the court has emphasized that, unless demonstrators engage in acts of violence “it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly is not to be deprived of all substance.” Similarly, the European Court of Human Rights, in the case of Yılmaz Yıldız and Others v. Turkey (2014), ruled that “a peaceful demonstration should not, in principle, be made subject to the threat of a penal sanction.” 

A recent decision from an apex court endorsing this approach is that by the Constitutional Court of Russia in the Ildar Dadin case, Judgment № 2-П (2017). Russia’s Constitutional Court ordered a review of the case of imprisoned opposition activist Ildar Dadin. The Court ruled on 10th February 2017, after considering a challenge from Ildar Dadin, the first person convicted under a controversial statute authorizing criminal prosecution of Russians who take part in more than one unsanctioned protest in a 180-day period. Dadin, who was serving a prison sentence argued that the statute is unconstitutional. To quote the Court: “.. it was unconstitutional to hold a person criminally liable merely for repeatedly violating laws regulating public assembly, unless the violations resulted in harm to health, property, the environment, public order, national security or other constitutionally protected values”. 

The background to the decision is that when Russian authorities subjected the activist to a criminal trial and he was sentenced to serve a prison term, Dadin filed a complaint with the Constitutional Court of Russia challenging the compatibility of the legislation with the provisions of the Russian Constitution on freedom of assembly and expression. The Constitutional Court held that the authorities should base their application of the statute on “the real scale of public danger” and only prosecute protesters after rallies that were not peaceful. The Court in interpreting the scope of the impugned legislation, directed Russian courts and law enforcement agencies to steer away from their unduly formalistic application of the law and instead assess the actual danger to the rights and values at stake. Jail time is too harsh a punishment for participating in unauthorised rallies, the ruling went on to say. The Court stated that criminal liability for infringements at public events should be commensurate with the danger to the public of the actions.  Criminal liability should not be applied in cases where the infringements were merely formal and caused no harm.        

It is also noteworthy that in a joint report of the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, it has been emphasized that no person should be held criminally, civilly or administratively liable for the mere act of organising or participating in a peaceful protest.

In addition, the Supreme Court of Kenya retreated to the formalist argument of the need for specificity in pleading embodied in the infamous pre-2010 Anarita Karimi case, which Kenyan courts usually invoke to avoid engaging with a question that they deem as inconvenient to reaching the court’s desired result. This despite the explicit constitutional command in Article 22(3)(b) that the courts should eschew formalism in Bill of Rights adjudication and despite the example of the emancipatory approach to pleadings in constitutional litigation by the Supreme Court of India and the Constitutional Court of Colombia on adoption of “epistolary jurisdiction” in such circumstances. It is noteworthy that aside from a few High Court judges, i.e. Justices Mumbi Ngugi, Joel Ngugi, George Odunga, and the late Justice Louis Onguto, most Kenyan judges have failed to read the pre-2010 Anarita Karimi dicta in light of the values and edicts of the 2010 Constitution.         

Second, the Supreme Court of Kenya shielded the impugned criminal laws from constitutional scrutiny. The Court, in exercising the constitutional review function, must scrutinise criminal laws and criminal procedure laws for compliance with the values and principles embodied in the Bill of Rights. Given that the body of Kenyan Criminal laws and Criminal Procedure laws pre-date the 2010 Constitution, the Courts have a special role in scrutinising both the legislations and common law decisions founded on them for constitutional compliance. In this case the Supreme Court failed to perform this role and thus failed the Kenyan people.   

Given that the Criminal laws and the Criminal Procedure Code and the developments in criminal common law predate the enactment of the 2010 Constitution, the courts are expected to bear in mind the edict in Article 20(3) of the Constitution that commands courts to develop the law and interpret the law in a manner that conforms to the values and ethos of the Bill of Rights. A similar point had been made by the celebrated Justice Johann Kriegler in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) when he underscored the transformative impact of the Bill of Rights on every aspect of law, noting that the advent of the Bill of Rights entailed a reappraisal of pre-existing criminal statutory and common law ‘in the light of the new constitutional norms heralded by that transition.’     

Third, the Supreme Court of Kenya adopted an improper approach on the question regarding the unconstitutionality of Sections 78(1), 78(2), and 94(1) of the Penal Code, where the court found that the ingredients of the offences are not vague and uncertain as many cases set out what constitutes a breach of peace.   

In the domain of legal vagueness, three types of vagueness are discernible: vagueness in the content of the law, vagueness in the allowable evidence and prescribed procedures used in reaching a legal verdict, and vagueness in the enforcement or effect of the laws. These three variants of vagueness are implicated due to the failure by the legislature to set out the “ingredients of what constitutes a breach of the peace”. The Supreme Court implicitly acknowledges this failure by the legislature. However, despite this finding it declines to nullify the law for vagueness on account of the fact that “the courts through case law” have set out what constitutes a breach of peace. This is an improper approach.     

In comparative practice, the approach by the Supreme Court of the United States is relevant in illuminating the correct approach to vagueness in such circumstances. In a judgment delivered on 24th June 2019, writing for the majority of the Justices of the United States’ Supreme Court in United States v. Davis, 588 U. S. ____ (2019), Associate Justice Neil Gorsuch wrote: 

“In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behaviour to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”

The United States’ Supreme Court held that overly vague criminal laws offend due process (by failing to give individuals notice of forbidden conduct) and separation of powers (by forcing the judiciary, not Congress, to define criminal conduct). Gorsuch’s opinion is a reminder that it is the government’s responsibility to prove guilt, and the court’s duty to interpret that guilt under the narrow requirements of the law. The vagueness of the rule in question undermines this and thus the entire justice system: Its lack of coherence and range would allow courts to broadly interpret and extend the law’s reach beyond their constitutional means. It is this point that Justice Gorsuch makes when he notes that “In our republic a speculative possibility that a man’s conduct violated the law should never be enough to justify taking his liberty.” 

A protester physically engages police during the ‘occupy parliament’ demonstration

The Davis judgment followed an earlier precedent by the United States’ Supreme Court in Sessions v. Dimaya, 584 US_(2018) where it was held that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. The US Supreme Court held that the language in the federal definition of a crime of violence, was unconstitutionally vague. The Court emphasised that the prohibition of vagueness in criminal statutes, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law”. 

The void-for-vagueness doctrine, as the Court called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. The Court was keen to point out that the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. In that sense, the doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not. To quote the court: “[I]f the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department”. (See also Neil Gorsuch “A Republic, If You Can Keep It” (Penguin Random House: 2019)  

The approach by the United States Supreme Court chimes with the argument by the Appellants in the Hussein Khalid case and advances the principle of legality. The contrary approach by the Kenyan Supreme Court subverts the principles of legality, rule of law, due process, and the separation of powers.  

Fourth, the Supreme Court of Kenya failed to grasp a critical question that was before the court. The Court was asked to make a determination on the violation of the right of the Appellants to be informed promptly of the reason for arrest under Article 49(1)(a) of the Constitution. In essence, the Supreme Court of Kenya was facing a question reminiscent of that faced by the Warren Court (tenure of Earl Warren as the US Chief Justice), that transformed the criminal procedure and police treatment of the accused persons through its landmark decision in Miranda v Arizona, 348 U.S. 436 (1966) – creating a police duty to inform suspects in custody of their Fifth Amendment right. However, when faced with such a historic opportunity to offer jurisprudential leadership that would guide the nation on treatment of arrested persons by police officers, the Supreme Court of Kenya failed to seize the opportunity.  

Instead of addressing the question of the right of arrested persons to be informed promptly of the reason for arrest under Article 49(1)(a) of the Constitution, the Supreme Court inexplicably turned the dispute to be about the right to be produced before court within 24 hours under Article 49(1)(f) of the Constitution. In essence the Supreme Court of Kenya conflated the informational duty in Article 49(1) (a) with the implementational duty in Article 49(1) (f), the latter duty was not raised by the appellants and that question was not before the Court. These two provisions serve different constitutional purposes and it is thus shocking that the apex court did not appreciate the difference between the duty to provide information to an arrested person and the totally unrelated duty of producing someone before court within 24 hours. The court even goes on to suggest that the arrested persons must have known why they were arrested, in effect excusing the police from complying with the duty imposed under Article 49(1)(a) of the Constitution. In sum, the Supreme Court of Kenya tried to wipe out, delete, or blot out Article 49(1)(a) of the Constitution from that transformative charter, this amounts to an attempted coup on the exercise of the constituent power by the people of Kenya as exercised in the August of 2010 in endorsing the Constitution through a referendum. 

In sum, as a nascent court, the Supreme Court of Kenya ought to, in its judgments, dedicate more space to the articulation of constitutional principles, giving flesh to the bare bones of the Constitution and clearing a path for internalization of constitutional norms. The apex court can only demonstrate this through the depth of analysis of issues and articulation of the law and unabashedly demonstrating enduring commitment to constitutionalism. Sadly, this is not reflected in the Hassan Khalid judgment. What strikes one on reading the judgment is that most of the questions and issues before the court are not dealt with adequately (the court engages casually with the issues before it) and there is a general impression that the court did not treat the case before it as a claim that offered it an opportunity to provide jurisprudential leadership to the nation and give the society a beacon to walk towards.         

Comparative perspective: Mhlunguana Judgment (2018) – South African Constitutional Court 

Criminal penalties have increasingly been used to repress protests. Against this background, a ruling from South Africa’s Constitutional Court, delivered on 19th November 2018 in the case ‘Mhlunguana and Others v. the State and the Minister of Police’, represents a significant step forward in protecting the right to freedom of assembly, not only in South Africa, but around the world—especially because the court references international law to support its conclusions. 

In the judgment, the Constitutional Court ruled against a 1993 law which permitted criminal penalties, including fines and up to one year’s imprisonment, for failure to give proper notice to the authorities of a planned gathering of 15 or more people. The criminal provisions of the Regulation of Gatherings Act, passed in 1993, were rarely used until Jacob Zuma became President in 2009. In 2013, 10 activists from the Social Justice Coalition decided to challenge the law’s validity, after being arrested during a peaceful protest outside Cape Town’s Civic Centre. 

The Constitutional Court’s unanimous judgment emphatically recognized the importance of the right to protest: “People who lack political and economic power have only protests as a tool to communicate their legitimate concerns. To take away that tool would … frustrate a stanchion of our democracy: public participation.”

The judgment notes the chilling effect criminalisation has on all people, and children in particular: “For children, who cannot vote, assembling, demonstrating, and picketing are integral to their involvement in the political process … exposing children to the criminal justice system—even if diverted under the Child Justice Act—is traumatic and must be a measure of last resort.”

The judgment concluded that criminal sanctions for protests that do not pose a danger to the public are disproportionate and thus unconstitutional. The South African Court suggested that even administrative fines might be unconstitutional. The Court based its opinion on two international law decisions (by the UN Human Rights Committee and the European Court of Human Rights).

The Court cited laws and cases from other countries in support of its conclusion that “there is no reason to think why the less restrictive incentives identified by the applicants and amici will not work just as well as criminalisation, without the far-reaching consequences flowing from a conviction.”

The South African Constitutional Court’s judgment—carefully reasoned as it is, citing international law in support of key findings,—will reinforce the existing international jurisprudence supporting the right to peaceful protest. It is likely to prove significant in persuading courts and legislatures of other countries to similarly renounce criminal penalties that could chill the exercise of freedom of assembly.

Indeed, the progressive stance by the Constitutional Court of South Africa on the question of the right to protest/demonstrate is also evident in the recent approaches by other apex courts in the African continent. The Constitutional Court of Zimbabwe in a decision rendered on 18th October 2018, DARE vs. Saunyama N.O., CCZ No. 5 of 2018 held that a provision in the Public Order and Security Act, which allowed police officers to issue blanket bans on future demonstrations in specific geographical areas for up to one month, was an unjustifiable limitation on the right to demonstrate and present petitions. A Zimbabwean NGO challenged the provision after a police officer in the Harare Central Police District prohibited demonstrations in the district for a period of two weeks in September 2016. The Court found that the provision had the potential of “negating or nullifying the rights not only completely but perpetually” and was an unfair and irrational limitation on the right as it allowed police officers to pre-emptively prohibit all demonstrations, irrespective of their nature or scope. 

A similar progressive stance was taken by the Supreme Court of Appeal of Malawi in a decision rendered on 30th September 2019, Attorney General vs. Trapence, Case Number 566 of 2019. The Supreme Court of Appeal of Malawi ruled that a series of protests could continue despite violence and criminality that had marred previous protests. After a contentious election result in May 2019, opposition leaders challenged the result in court, arguing that there were vote-counting irregularities, and a civil society organization convened mass demonstrations calling for the resignation of the chairperson of the Electoral Commission. The Supreme Court of Appeal dismissed the Attorney General’s application for an injunction preventing future demonstrations focused on the election result until the issue of violence had been resolved and the opposition leaders’ court challenge had been finalized. The Court ruled that it was not the sole responsibility of demonstration convenors to ensure non-violence during demonstrations and rejected the Attorney General’s statement that the police lacked resources to ensure safety of the public and property around the demonstrations. 

The South African Constitution’s creation of a new apex court to oversee the protection of fundamental rights it recognizes gives reason for optimism on a “rebirth” of constitutionalism in Sub-Saharan Africa. An apex court that takes its task seriously can be key to the success of transformative constitutional and human rights law. The experience of that court in adjudicating the dispute on the right to “protest/demonstrate” is evidence that constitutions can be more than paper.    

Conclusion 

There are many “colonial relics” and relics from the authoritarian post-independence African state which, in a number of countries, have “escaped” reform and continue to be utilized on a regular basis almost 50 years after the so-called “winds of change” began to sweep Africa. Since that time, constitutionalism has received a battering from a number of autocratic regimes characterized by personal rule and patronage which has had the effect of inhibiting the development of strong and independent institutions and a civil rights culture. With the end of the Cold War in 1989, the re-introduction of multi-party politics and the attendant constitutional reforms, the latest being in South Africa and Kenya, the prospect for genuine democratic change in Africa appears to have gained a second wind. However, courts must play their part in mid-wifing this transition to democratic governance. Kenyan judges must wake up to the realization that demonstrations and protests are a legitimate and vivid way for the public to make its views known. The Supreme Court of Kenya must stop being a by stander or an hindrance to the birth of this new democratic order, it should join the
Constitutional Court of South Africa in guiding and setting pace for democratic reforms across sub-Saharan Africa.  (

— Writer is an Advocate of the High Court and legal scholar

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