Justice Makau decision on on protests unjustifiable

By Demas Kiprono

Demonstrations, public assemblies or protests are part of Kenya’s history. They form an important tool Kenyans use to show displeasure against injustices, marginalisation, discrimination, environmental degradation and oppression. 

As far back as 1922, protests were held when Harry Thuku was arrested. Thuku was arrested for his political agitation and involvement in the Young Kikuyu Association. It led to the killing of 20 Africans by the colonial government. A year later, Nandi Orkoiyot Barserion was arrested and deported for organizing a cultural assembly known as Saket ap Eito.It agitated for Nandi non-cooperation in protest of punitive taxes and continued land alienation by the Colonialists.

Assemblies in Kenya are regulated under The Public Order Act, which was promulgated in the 1950s. Since then, the law has been amended severally, though not sufficiently, to align itself with democratic principles and international human rights law. In the late 1990s, it was amended to remove the provision requiring organisers of protests to obtain ‘permits’ from authorities. After the amendments, planners only needed to notify police of their intentions and location to enable the state plan to protect citizens during said gatherings. 

Articles 33 and 37 of the Constitution of Kenya 2010 further buttress the right to protest by providing for freedom of expression and the right to, peaceably and unarmed, assemble, picket, demonstrate and petition respectively. Article 24 further prescribes how and when fundamental human rights can be justifiably limited. 

It requires limitations to be written in law; to be reasonable and justifiable in an open and democratic society – taking into account the nature of the right; importance and purpose of the limitation; and, nature and extent of the limitation. It cautions that any limitation should not limit the right so far as to deviate from its core or essential content. 

Recently, in July 2019, Justice Aaron Makau made a landmark decision regarding the right to protest. The constitutional petition had been filed by Jubilee Politician, now Nyeri Town MP, Ngunjiri Wambugu in 2016. He listed the Ministry of Interior, Inspector General of Police and Attorney General as Interested parties.  

His bone of contention was that third parties and bystanders’ rights must be protected during protests; that only peaceful protests are protected under the law; that someone should be held liable for injury, death and loss of property; and, that more responsibility should be placed on planners of protests. The respondents in the case, being government law enforcement were in complete agreement with this position. 

The Court found itself deliberating on an argument that did not have a progressive counter narrative. Also, the petition was unknown to many stakeholder groups, including members of the civil society, labour unions, human rights activists and the academia. 

In the judgment, the Court determined that the right to assemble is conditional on protestors being peaceful and unarmed – and that the police have the duty to immediately stop protestors if they are armed with any weapons including stones or any offensive weapons of whatever nature. 

Here, the court failed to recognise the dynamic and complex nature of protests. This determination also takes away the idea of individual responsibility and that bona fide assemblies can have rogue elements. For instance, if police spot one protestor with a weapon or a stone, does it mean that the entire procession is culpable? Moreover, violence can be triggered by external elements such as criminals, counter protestors, infiltrators and even law enforcement.

Secondly, the Court proclaimed that non-demonstrators and third parties enjoy equal rights and freedoms during demonstrations. Be that as it may, the right of those expressing themselves is paramount. My right to demonstrate or express myself cannot be grounded on people who do not hold that expression – unless I pose present, serious harm to them.   

Thirdly, the Court directed government to amend the law to demarcate protest zones, cater for clean up after demonstrations and introduce a requirement for consent by persons adjacent to demonstration zones. In my opinion, giving the state the power to demarcate zones for demonstrations is dangerous. The state may decide to demarcate nondescript, isolated and obscurer corners that will render protests useless. 

Furthermore, the provision proposing consents by persons adjacent to protest zones is unreasonable and unjustifiable. It is a form of prior censorship. For instance, if I wanted to hold an assembly in freedom corner – Uhuru Park, would I need consent from Nyayo House or a pastor holding a crusade in the park?

Lastly the court held that government should change the law to ensure that give details on how they intend to ensure non-demonstrators are not affected; including laws prescribing liability for injury, death or destruction of property. 

To me, this provision is academic and impractical. It shifts the burden of maintaining law and order from law enforcement to the planners. The provisions in the penal code are enough to deal with people deliberately destroying property, stealing or assaulting others. (

— Writer is a constitutional and human rights lawyer