Article 37 of the Kenyan Constitution 2010, guarantees every person the right to peaceably and unarmed to assemble, demonstrate, to picket and to present petitions to public authorities.
It is with no doubt that freedom to assemble is a fundamental human right and not a privilege. It allows people to air their grievances and opinions through protests to demand actions from the authorities.
In Kenya, protests, demonstrations, strikes, processions, picketing and all forms of temporary gatherings aimed at promoting or defending a common goal are considered peaceful assemblies and the state is obliged to protect and fulfil the rights of those peacefully assembled. Law enforcers through the state should ensure that the protestors are protected from all violent elements like looters and other criminal activities.
Freedom of peaceful assembly should be free of fear, intimidation, harassment or arrest. When people gather for a peaceful assembly, it should be noted that the protestors not only have a right to freedom of peaceful assembly but also a broad spectrum of rights which include freedom of opinion, freedom of expression, freedom of association, freedom of thought, freedom of conscience, freedom of religion or belief, right to life, right to security, right to be free from torture, cruel and humane degrading treatment or punishment and right to a fair trial.
The state should ensure that this broad range of rights is protected by facilitating the assemblies and establishing dialogues with the organizers regarding safety and security measures. Law enforcement officers should create a mutual understanding and help reduce tension by avoiding threatening body language and the display of weapons and confrontational appearances. They should be absolutely patient while applying all rules and protecting protestors from violent criminal elements.
Freedom of peaceful assembly is a right and not subject to prior authorization. In Kenya, the state authorities require prior notification but this should be a presumption in favour of the assembly and their peacefulness. The law states that the regulatory officer should be notified of the intended public assembly at least 3-14 days before the public assembly date. The assembly can only be denied if there is a notice of another assembly at the same venue, time and date. The notification of the denial will then be communicated to the organizer in writing to a specified physical address.
Notification is important because it gives the state authorities an opportunity to plan and facilitate the assembly to ensure that human beings, public and private properties are protected. Although this is the case, spontaneous assemblies do not require notification as they are in response to an incident or a specific event.
With the ongoing demonstrations in the country, it is important that the organizers of the protests, the police and the protestors understand their roles during the demonstrations.
The role of the organizers in protests should notify the authority of an assembly, be present during the protests, assist the police to maintain peace and order and appoint marshals.
The role of protestors on the other hand is to demonstrate peacefully while unarmed, they should not commit acts of violence and should avoid damaging public or private property.
The role of police in protests is to maintain security and order, protect media and observers, manage the crowd, protect vulnerable participants, children, persons with disability etc., facilitate the assembly and communicate with the protestors through dialogue.
Protestors should be cautioned against any form of violence as it is an offence and if one does, then they should be arrested for breach of peace and taken to court within 24 hours of their arrest. However, they still maintain their rights as an arrested person, and they should not be subjected to any form of torture, inhumane treatment or punishment.
The police should restrain themselves from using force at all times. They should use force as a last resort. Use of force should be within the law’s parameters and in accordance with the principles of precaution, legality, necessity and the sixth schedule of the National Police Act & Service standing orders.
Teargas and water cannons can be used only if necessary and in a proportionate manner. The police should ensure special care is taken not to use them if uninvolved bystanders are nearby or in places with vulnerable populations such as schools and hospitals.