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The Kenya Times
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Kenyan Protesters Have Taken to the Streets in Their Thousands; What the Law Says About Their Rights

by John Mukum Mbaku
July 23, 2024
Reading Time: 8 mins read
Kenyan Protesters

Side to side photo of protesters in Nairobi CBD and police officers. Photo/Courtesy

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Across Kenya, thousands of mostly young citizens went to the streets protesting against tax proposals tabled by President William Ruto’s administration in its annual budget legislation. Using hashtags like #RejectFinanceBill2024 and #OccupyParliament, protesters held demonstrations against the finance bill since 18 June 2024.

They believed its proposals burden salaried Kenyans, entrepreneurs and consumers, arguing that it goes against Ruto’s campaign promise to place the poor at the centre of economic policy, reduce taxes and lower the cost of living.

In response to the protests, however, the police have used teargas, batons and water cannons to disperse people. Several protesters have so far died, and hundreds have been injured.

John Mukum Mbaku has studied the application of human rights laws in Africa, including Kenya, for over three decades. We asked him some questions on the right to protest in Kenya.

What laws govern public protests in Kenya?

The right to protest consists of a group of rights guaranteed by both domestic and international law. This includes the right to freedom of expression and the right to peaceful assembly. These rights are a critical part of the practice of democracy in Kenya.

The right to protest is entrenched in Kenya’s constitution under Article 37. It states that:

Every person has the right, peacefully and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

This right provides citizens with the wherewithal to inform the government of their grievances. It also represents one of the most important ways through which citizens can participate in their governance.

Kenya Protests
Gen Z-led anti-Finance Bill protests in Kenya. PHOTO/TKT

However, the right to protest isn’t absolute. Those who exercise it must not infringe unnecessarily on the rights of others, impede the operation of government, or endanger public order and safety.

There are other laws that regulate the nature of public demonstrations in Kenya. They include Section 5 of the Public Order Act. This law regulates public gatherings and forbids the holding of “a public meeting or a public procession” that’s not sanctioned by this section.

Anyone planning a public meeting, or a public procession must notify the police commander of the nearest police station “at least three days, but not more than 14 days, before the event”.

International Human Rights Law guarding Kenyan Protesters

International human rights law imposes an obligation on the state and its security agencies to enhance the ability of citizens to realize the right to peaceful assembly.

For example, according to the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

Although not legally binding, the UN Basic Principles provide guidance for interpreting international human rights law. They also help UN member states ensure that law enforcement officials act in line with international human rights law.

Kenya ratified the International Covenant on Civil and Political Rights in May 1972. According to Article 21 of the covenant:

The right of 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 or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Why do protests matter?

Protest is fundamental to the protection of human rights in a democracy like Kenya’s. Hence, it’s important that Kenyans, including their government, safeguard the constitutionally guaranteed right to protest for several reasons.

  1. Public protests can empower Kenyans and help them realise that they aren’t alone in their efforts to petition the government to provide relief for their grievances.
  2. Peaceful protests can force the government to include issues that are of interest to the protesting public in national policy debate.
  3. Protests can enhance the ability of minorities to participate in governance generally and policymaking in particular.
  4. Protests can function as a teaching tool, helping the government recognise, abolish or restructure “bad” or unworkable policies.
  5. Protests can force politicians to keep their campaign promises and refrain from abandoning development plans that were used to attract votes and win elections.
  6. Peaceful protests can give young people a way to insert new ideas into political discourse and help make governance more relevant to the lives of the people.
Kenyan Protesters: What The Law Says About Their Rights
Gen Z-led anti-Finance Bill protests in Kenya. PHOTO/TKT

How have Kenyan courts interpreted and applied the right to protest?

Kenyan courts have developed jurisprudence on the right to assemble and to protest. While some court decisions have supported the right to protest, others appear to impose restrictions on citizens’ rights of free assembly and association.

For example, in Ngunjiri Wambugu v. Inspector General of Police and Others (2019), the high court directed the government:

to formulate and/or amend the requisite law and regulations to ensure that demonstrations are peaceful and held as per the Constitution including inter alia prescriptions for demarcation of demonstration zones, responsibilities for clean-up costs, maximum numbers, consents of persons/entities adjacent to demonstration zones with appropriate penalties when they go outside the expectations of the law.

Human rights advocates believe that this order violates the right to freedom of assembly under the Kenyan constitution. Although the creation of so-called “demonstration zones” may appear to protect the right to protest, their real effect may be censorship and an unjustified limitation on the rights to freedom of speech and assembly.

Establishing official zones for protests can defeat the democratic function of demonstrations. Protesters should be able to choose the venue of their activities to maximize access to their target audiences. For example, a protest against legislative corruption would be more effective if held in front of parliament buildings or at the very least, in their vicinity.

Given that the purpose of a demonstration is to draw attention to the organizers’ cause or grievances, location is an important element of the right to protest.

What must be done to enhance the right to protest for Kenyan Protesters?

While it’s important that the government regulates protests to minimize harm – such as deaths or damage to property – it must not impose criminal liability on peaceful protesters. Instead, security forces should work to enhance and ensure the peaceful conduct of public gatherings.

Most importantly, agents of the state must not engage in activities that roll back constitutional rights under the guise of peace and security.

Holding organizers of protests jointly liable for acts that they may not have committed is unfair,and could deter them from organizing protests for fear of possible penalties if damage occurs. The Conversation

John Mukum Mbaku, Professor, Weber State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Kenyan Protesters: What The Law Says About Their Rights
Side to side photo of KDF and protesters in Nairobi.
Tags: 2010 Kenya constitutionFinance Bill 2024Gen ZHuman RightsKenyaKenya ProtestsPolice BrutalityWilliam Ruto

John Mukum Mbaku

John Mukum Mbaku is a Brady Presidential Distinguished professor of economics and John S. Hinckley Fellow at Weber State University. He is also a nonresident senior fellow at The Brookings Institution in Washington, D.C., and an attorney and counselor at law, licensed to practice in the Supreme Court of the State of Utah, the U.S. District Court for the District of Utah, and the U.S. Supreme Court. He received his PhD in economics from the University of Georgia and his JD in law and graduate certificate in natural resources and environmental law from the S. J. Quinney College of Law at the University of Utah. He is a resource person for the Kenya-based African Economic Research Consortium. Professor Mbaku also holds a B.S. (Chemistry) from Berry College (Mount. Berry, Georgia), a B.A. (French Language and Literature) from Weber State University (Ogden, Utah), and an International MBA (IMBA) from the University of South Carolina. His research interests are in public choice, constitutional political economy, sustainable development, law and development, international human rights, intellectual property, rights of indigenous groups, women and children, trade integration and institutional reforms in Africa. Mbaku is the author of Corruption in Africa: Causes, Consequences, and Cleanups (Lexington Books, 2010) and (with Mwangi S. Kimenyi) of Governing the Nile River Basin: The Search for a New Legal Regime (The Brookings Institution Press, 2015) and Protecting Minority Rights in African Countries: A Constitutional Political Economy Approach (Edward Elgar, 2018). On May 22, 2017, John Mukum Mbaku, was admitted and qualified as an Attorney and Counsellor of the Supreme Court of the United States. At Weber State University, John Mukum Mbaku teaches courses in principles of economics, intermediate microeconomics, international trade, business calculus, and economic development. He also works with international students and helps them adjust to college life in the United States. Professor Mbaku also engages with community groups and helps them understand issues such as globalization, outsourcing, and immigration and how they affect economic activities in the United States. Professor Mbaku also visits local schools to talk to students about the U.S. constitution, constitutionalism and the rule of law in the United States and other countries. He is a consultant to several domestic and international news organizations, as well as multilateral organizations (e.g., the African Development Bank), on governance issues in Africa and has appeared on several domestic and international news programs to discuss elections, corruption, sustainable management of natural resources, including water, and various governance-related issues in Africa.

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