Authoritarian lawfare against the right to assembly is futile

2025 June 25 protesters approach Central Business District Photo Courtesy: Reuters

By tabling the Public Order (Amendment) Bill 2025, ODM Nairobi Woman Representative Esther Passaris has stirred another national beehive. Critics argue the bill curtails the right to assembly and youth are now threatening to salamia her and MPs who support it. With fresh protests planned for Saba Saba Day on Monday, 7 July, what are the bill’s merits and drawbacks?

Allow me to step past the online criticism focusing on Esther Passaris, her personal life choices, legislative history, romance with the United Democratic Alliance and focus on her amendment bill. I may be old school on this, but addressing the weakness of an argument is much stronger than attacking the character and motive of a person.

The bill argues that public safety and key government buildings would be protected better by introducing stricter restrictions on the location and conduct of public demonstrations. Specifically, it seeks to prevent public gatherings within 100 meters of the Parliament, State House, Courts, and other protected areas. It seeks to vest the power in the Interior Cabinet Secretary in consultation with county governments to determine specific zones for protests. It also introduces harsh fines of Sh 100,000 or three-months prison terms for those who violate these conditions.

In their current form, the amendment effectively bans picketing. Pickets, by definition, must occur within the proximity of policymakers. State officers are often found in government or legislative offices. The provisions is vague and subject to abuse at the whim of the Interior Cabinet Secretary. If this passes, it opens the door for the current and all future Interior Cabinet Secretaries to tell protesters to protest environmental misgovernance near the Dandora dumpsite or some other random, isolated space rather than parliament where laws are made.

While not all constitutional freedoms are absolute, they are national in scope. Beginning to restrict freedoms to certain public spaces is a slippery slope. What is next? Limiting public criticism to only public participation forums called by the government? Banning public debate on media shows? Registering organisations to work in certain counties and not others? Switching on and off the internet when online discussion gets uncomfortable?

Predictably, the fear of arrest or fine will discourage people from participating in legitimate and peaceful protest. Kenyan and global history teach us when people feel they cannot legally protest they resort to more confrontational methods or move their grievances underground. Given the current civil unrest, violence and regular clashes with police, this would be unwise. It further should be noted that although the United States has a comparable federal law, it did not stop the storming of the Capitol on 6 January 2021.

The bill echoes recent public calls by the President and Deputy President for parliament to enact laws that would restrict the Freedom of Assembly (Article 37). It is unclear whether the bill has enough traction among MPs. Passaris’s own Orange Democratic Party minority leader has disassociated themselves from the bill and former legislative UDA MP now Social Affairs Cabinet Secretary has declared that his bill was better.

For these reasons, this bill weakens civic participation, public accountability and civil society. It removes an important cornerstone of a democratic society that holds its government to account. Predictably, current and future governments will use it to silence disagreement with unpopular decisions and opposition during political unrest. It is designed to allow only state-approved policy narratives.

Constitutionally flawed and lacking human rights safeguards, the bill also fails to address current unrest or prevent future harm. Last week’s 25 June anniversary commemoration left close to 30 people dead, over 500 injured, nine police stations scorched and at least 30 micro, small and medium businesses looted. This bill is preoccupied with the 20-square-kilometer radius of the Central Business District, yet fewer than three police-related deaths took place here. It offers no solutions to the current violence.

Instead of silencing public expression and assembly, the nation needs smarter, more inclusive strategies that channels state and civic energies into constructive dialogue and lasting solutions.

This opinion was also published in the Saturday Standard, 5 July 2025.