The Right to Protest: Understanding Article 37 of the Kenyan Constitution

Freedom of assembly is a cornerstone of any democratic society, providing a crucial avenue for marginalized and disadvantaged groups to voice their concerns. In Kenya, the right to protest has played a significant role in shaping the nation's history, from the fight for independence to the establishment of a multi-party system and beyond. This article delves into the origins of the right to assembly, its legal foundation in Kenya, the role of legal jurisprudence in its development, and the regulation and limitations imposed on it. Historical Background The right to protest has deep roots in both British and Kenyan history. In Britain, the right to demonstrate can be traced back to the Magna Carta of 1215, a foundational document that established the principle of the rule of law. This principle, which asserts that no one is above the law, laid the groundwork for the recognition of various rights, including the right to protest. The Peasants' Revolt of 1381 and Martin Luther's 95 Theses are notable examples of how protests have historically driven significant social and political change. In Kenya, the right to protest has been instrumental in the nation's development. From the early 1920s, when African political associations fought for rights such as land ownership and better living conditions, to the labor organizations that filled the void left by banned political parties in 1952, protests have been a powerful tool for change. Notable examples include the demonstrations led by Harry Thuku's supporters and the labor union activities of leaders like Argwings Kodhek and Thomas Mboya. More recently, protests have been pivotal in achieving the repeal of Section 2A, which established Kenya as a one-party state, and in influencing contemporary political decisions. Legal Basis for the Right to Protest The right to protest in Kenya is enshrined in Article 37 of the Constitution of Kenya 2010, which states: "Every person has the right, peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities." Additionally, Article 3 of the Constitution mandates that every person has an obligation to respect, uphold, and defend the Constitution. Kenya is also bound by international statutes, such as the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, which recognize the right to peaceful assembly. These international agreements reinforce Kenya's commitment to upholding the right to protest within the framework of democratic principles. Regulation of the Right in Kenya The Public Order Act (CAP 56) regulates the exercise of the right to protest in Kenya. The Act sets out procedures to ensure that protests are conducted in a manner that protects both participants and the general public. Key provisions include:

• Notice Requirements: Organizers must give notice of the planned assembly or procession between 3 to 14 days before the event. The notice should include details such as the organizers' names and addresses, the date and location of the event, and the proposed route.
• Regulating Officer's Role: A regulating officer, usually an officer commanding a station, may stop a planned procession or meeting if there is a breach of the Act or an imminent threat.
• Organizers' Responsibilities: Organizers must be present throughout the event and assist the police in maintaining peace and order.
• Unlawful Assemblies: Any gathering that does not conform to the Act is considered an unlawful assembly, and participants may face legal consequences.

Limitation of the Right through Judicial Precedent While the right to protest is protected, it is not absolute and can be limited under certain circumstances. Judicial precedents have established scenarios where the right may be restricted. In Ferdinand Waititu Ndugu v Attorney General & Others, the court held that the right to protest must be exercised peacefully, without arms, and should not occur on private property. Similarly, in Boniface Mwangi v Inspector General & Others, the court emphasized that protests in protected areas, such as those where arms are stored, are specifically limited by law. The right to protest is vital for ensuring that Kenya upholds the rule of law and democratic principles. While it must be respected, the law seeks to balance this right with the need to protect public order and safety. By understanding and adhering to the legal guidelines, citizens can effectively exercise their right to protest within the bounds of the law. Stay vigilant and informed to ensure that your actions contribute positively to the democratic process.