Bid to criminalise freedom of assembly unconstitutional
If street protesting today takes a degree of courage for most, imagine for a minute, the degree of madness it took during the 1980s and 1990s to replace the one-party state and introduce democratic freedoms. Like elsewhere in the world, the story of how we won the right to participate in public affairs or to act in the public interest cannot be told without street marches, picketing and petitions. Recently introduced into Parliament, the Public Order (Amendment) Bill of 2019 seeks to fundamentally alter this part of our history for the worse and we must challenge it.
Allow me to first declare a personal conflict of interest. I am a serial protester. Over the last three years, I have organised or participated in no less than fifteen street actions. They include calling for justice for unlawful killings and freedom for women to choose what they want to wear; accountability for corruption and forced evictions; an end to the stalemate between Doctors and the Health Ministry, elephant conservation, school land protection and even street music festivals to build a sense of neighborhood. I have never felt a greater sense of patriotism and purpose than during these moments. Ask any public interest demonstrator and they will tell you the same.
Our national experience is shared globally. Across the world today and throughout global history, the right to protest has been central to the freedom of expression and the right to participate in public affairs. Where would Christians be without Palm Sunday, America without the 1963 March on Washington, South Africa without the 1976 students strike and uprising or the world without the 2003 Anti-Iraq war protests?
In clear disregard for this history, Ruiru Member of Parliament Hon. Simon King’ara has introduced an amendment to the Public Order Act, a legal relic from the days of the colonial regime. The amendments seek to impose fines of up to Kshs 100,000 and prison terms of up to six months for protestors that cause harm to others or destruction of property. Further, organisers of assemblies and public meetings will be compelled by the court to compensate the affected persons.
On the surface, the bill may attract some sympathy. The mayhem and murder we saw prior to and during the 2017 elections destroyed lives and livelihoods worth millions. For keen followers of King’ara’s political history there may also be a degree of self interest in the bill. In April 2017, his followers violently clashed with Hon Isaac Mwaura’s over a boda boda shed during the pre-election campaigns in Githurai Kimbo. By further criminalising violent demonstrations, the mover argues, we can avoid this in future.
There are several problems with the amendment bill. Organising public assemblies and marches is both an art and science. Even with careful mobilisation, inspiring messages and powerful optics, street action can be easily disrupted by uniformed officers, strangers or criminals. The bill shifts the primary responsibility for providing safety and security from the National Police Service to protest organisers. It does this without recognition of the fact that the penal code and provisions for civil litigation are already adequate to respond to offences these amendments seek to address.
While the Bill’s sponsor is at pains to demonstrate that the amendments do not infringe on national constitutional values and international human rights standards, closer reading of their provisions reveal that the opposite to be true.
Imposing additional hefty fines and excessive jail terms will only deter public expression and participation in future. As it is, there is already a high personal cost of being a protester as Beatrice Waithera and Boniface Mwangi found out last week. Despite having duly notified the authorities of the April 30 Anti-Corruption rally, Beatrice was arrested, held for ten hours and then released despite the rally being lawful.
For these reasons, the National Assembly and the Senate could do no better than to withdraw the Public Order (Amendment) Bill of 2019. In its place and to respond to the concerns of violent protesting and violent policing, all of us should dust off and read the Kenya National Commission for Human Rights publication “The Right to Freedom of Peaceful Assembly: A checklist for the Kenyan Police and the Public” before organising any public protest. The freedom to express ourselves, assemble, associate and protest are four pillars of our constitutional democracy. There is nothing more Kenyan than them and we protect and promote them.
First published Saturday Standard, May 11, 2019. Kindly reproduced here with permission from the Standard Group