Introduction
Undoubtedly, freedom of assembly is an important component for the true existence of a democratic society. In the pursuit for a constitutional democracy the minority, the disadvantaged, marginalised among others find a means to voice their concerns through protests. This is most especially true for our country where it could be argued the right to protest has been steadfast in shaping our nation. From independence agitation to multiparty realisation and constitutional emancipation. The right to assembly has been the enabler of the words engrained in our National Anthem “May Justice be shield and defender”
In the case of South African Transport and Allied Workers Union and another v Garvas and others [2012] ZACC 13, the Court correctly summarized the significance of the right to freedom of assembly in the following words; “The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give a voice to the powerless. This includes groups that do not have political or economic power, and other vulnerable persons. It provides an outlet for their frustrations. This right will, in many cases, be the only mechanism available to them to express their legitimate concerns. Indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms.”
This article therefore makes an inquiry into the origins of the right to assembly, its legal basis in our country, the role that legal jurisprudence has played in enhancing it and how it has been regulated and limited.
Historical background
The existence of this right in our country since the days of colonial oppression to attainment of independence is no surprise. We happen to be a common law system this means that we have borrowed a lot of our laws and practices when it comes to our legal system from the British. It is therefore worthwhile to look at the origins of this right in Britain before its introduction in our country.
The right to demonstrate traces its origin in 1215 during the insurrection of King John. This is when the Baronage of England would lead a battle against the Monarch of the day. It would lead to the publishing of the great medieval document we now regard to as the “MAGNA CARTA” This is the document that gave birth to the principle of the rule of law signifying that no one was above the law regardless of status and rank. Even the king was subject to the law. Exciting is it not to discover that the right to protest (albeit not a right then) gave birth to the most profound principle of a constitutional democracy.
Evidently with the “MAGNA CARTA” coming to existence more agitation of rights by the small folks or as they were called peasants would follow. The Peasant’s Revolt of 1381 led by a local folk Tyler would see to an end the system of feudalism giving the British Public more rights in land. It is worthy to note that the Revolt was as a result of a poll tax that had been introduced.
Protests were however, not only impactful in governance of the state it would also play a crucial role in affairs of the church. Martin Luther the German Mock through his 95 THESES would lead a protest against various church practices and give rise to the Christian wing we refer to as “THE PROTESTANTS” Many more good stories of the struggle for change all have the aspect of protesting in them especially from where we borrowed our laws.
Let us now turn to our country. Kenya is indeed a product of protests, from the early 1920s when the Young Kavirondo Tax Payers Association and other African Political Associations agitated for African rights such as right to own land, better living conditions and decrease of the excessive taxes. A tale is told of one lady who was an avid supporter of the legendary Harry Thuku. She went by the name Muthoni Wa Nyanjiru. Her hero Mr Thuku was in police custody arbitrarily she would dare the men to take off their trousers and wear skirts as they were not brave enough to challenge for the release of Thuku. She would inspire all the people gathered on that day to protest. Similar stories echo throughout our independence struggle. For instance, when political parties were banned in 1952 the labour organisations would fill the vacuum left. Through protests Trade Union Leaders such as Argwings Kodhek and Thomas Mboya would even agitate internationally for the country. Eventually the ban would be lifted and Kenya would gain independence.
The Right to Protest would massively feature again for our country in the clamour for The Repeal of Section 2A that had made Kenya a one-party state. Famously referred to as SABASABA day the Kenyan people would rise in their thousands to oppose the tyranny imposed by the then ruling party KANU. His Excellency President Moi would accede to the pressure and grant the people what they so desired. Such is the power of the Right to Protest that the courts have belaboured to ensure it is accorded while developing jurisprudence on it. Recent protests that led to President Ruto withdrawing the disputed Finance Bill also go to further show the importance of this right in a constitutional democracy.
Legal basis for the right to protest
The right in Kenya emanates from the Article 37 of the Constitution of Kenya 2010 where it is stated that “Every person has the right, peaceably and unarmed to assemble, demonstrate, to picket and to present petitions to public authorities
Further Article 3 of the Constitution of Kenya 2010 states that “every person has an obligation to respect uphold and defend this constitution.
Kenya being party to a number of international statutes means we are also under an obligation to respect the right under the international laws we have ratified. We have the International Covenant on Civil and Political Rights which states in Article 21 that “the right to peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security, public health or morals.”
Article 20 of the Universal Declaration on Human Rights stipulates that “everyone has the right to freedom of peaceful assembly and association.
Regulation of the right in kenya
The Public Order Act (CAP56) regulates the enjoyment of the Right to Protest. It sets out a series of procedure so as to ensure that those participating in the protests and those going about their business are protected. We very well know that those protesting might not be in agreement with everyone hence the ACT was enacted to avoid unwanted fracas. It is important to note that the Act does not act to limit the right but rather regulate its application.
Section 5 of the Public Order Act regulates public meetings and processions by setting out the following procedures to be followed. Where a public assembly or procession is to take place
- Notice should be given between 3 to 14 days of the planned assembly or procession
- The notice shall contain inter alia:
- Full names and address of the organisers
- Proposed date of the meeting or procession
- Proposed site of meeting or proposed route
- If the procession cannot take place due to there being another procession or meeting planned for that day at the same route or venue the regulating officer shall forthwith notify the organiser (in writing and physical delivery)
- A regulating officer is an officer commanding a station
- Where such notice is given the meeting shall not be held, but may be held on such future date as the organiser may subsequently notify.
- The organiser shall be present throughout the meeting or procession or through his authorised representative and shall assist the police in maintenance of peace and order.
- The regulating officer may stop a planned procession or meeting if he is above the rank of inspector if there is breach of this section by the organisers or imminent danger or threat arising from the planned assembly.
- Failure to present oneself during procession is an offence
- Any gathering that does not conform to this section shall be an unlawful assembly and anyone participating is liable to one year imprisonment.
- The organiser may request for police officers for the purposes of security.
- Register of notices to be kept by regulating officer and can be inspected by members of the public during working hours.
Limitation of the right through judicial precedent
All rights enshrined in the Bill of Rights can be limited save for those that are provided for in Article 25 of the Constitution of Kenya. It therefore follows that the Right to Protest can be limited. Through judicial interpretation the court has suggested scenarios where the right may be limited.
The court in FERDINAND WAITITU NDUGU V ATTORNEY GENERAL& OTHERS held that “I would agree that the right under Article 37 is not absolute. In order for the right to be enjoyed it must be held:
- In a peaceful manner
- Protestors must be unarmed
- It ought not to take place in private property.
A derogation of the above set limits leads to a misuse of the right.
Further, the right was also limited in the case of BONIFACE MWANGI V INSPECTOR GENERAL & OTHERS.
Any attempt to access a protected area without lawful authority is prohibited by law. It therefore follows that the right to assemble, demonstrate and present a petition at the said location is specifically limited by law.
The court here is saying that we have certain areas where the law limits that right. These areas include, where arms and weapons are kept, gazetted area by the Minister of Interior, mining area among others.
Conclusion
Indeed, the right to protest is the key to ensuring that our country lives up to the rule of law. It must therefore be respected. However, the law has sought to ensure that there is a balance between those enjoying the right and those going about their business to ensure it doesn’t become an inconvenience to others. As we enjoy this right the above guidelines should assist you in ensuring that you are acting within the confines of the law. Stay vigilant.
