The recent announcement by the Cabinet Secretary, Ministry of Interior and Coordination of National Government Dr. Fred Matiangi to ban NASA public rallies in Nairobi, Kisumu and Mombasa is a dangerous move that might come with greater consequences. Kenya is a country that is currently greatly divided with one section feeling greatly aggrieved.
Demonstrating is means through which those aggrieved can express their unhappiness and pain. It is an avenue through which pent-up frustration is safely released. Suppression of people’s right to demonstrate will only further suppress their anger which will ultimately lead to an explosion of anger as seen in the Arab Spring.
Freedom is defined as the power or right to act, speak or think as one wants without hindrance or restraint. The 2010 Constitution of Kenya article 19 emphasizes on rights and fundamental freedoms so as to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
The right to freedom of peaceful assembly as enshrined in Article 37 of the Constitution allows persons and groups of people to organize and participate peacefully together and publicly convey positions and opinions and/or to protest and demand action by the authorities without fear of threat, harassment, intimidation or arrest. The right can only be limited by the law and to the extent that the so stated limitation is reasonable and justifiable.
The Public Order Act authorizes the stopping or prevention of an assembly when there is clear and present imminent danger of a breach of the peace or public order. The international law advocates for restrictions only in the interests of national security or public safety or in protections of rights and freedoms of others. The restrictions ought to be lawful, necessary and proportionate.
Protesters are required by the law to demonstrate peacefully without arms and not to commit acts of violence against private citizens or state agents as well as not to damage public and private property. The law advocates for an established relationship between the police and the protesters where security is provided to those demonstrating and those who are non-partisan. In a case where protesters turn violent, the law allows for arrests to be made due to a breach of peace and taken to court within 24 hours of the arrest. The law indicates clearly that the arrested violent protesters should be treated with humanity and their rights and dignity respected.
The violent protesters do not make the entire demonstration unlawful hence isolation of peaceful and violent is a requirement for the security forces. The police should only use force as the last resort where peaceful means have failed!
The post-August 8th election has seen demonstrations country-wide as a result of the Supreme Court of Kenya nullifying the presidential results. The opposition has been at the forefront of leading demonstrations while advocating for reforms within the IEBC or there will be no elections. Kenyans have witnessed the wrath of not only violent protesters where property both public and private has been damaged but also the brutal use of force from the security forces leading to loss of innocent lives. Change is good so is political change, however, the expense at which it is being pursued, there is a need for both civilians and the government through security forces to understand the freedoms in the constitution and respect them as required.