Love or hate them, protesters are actually protected by law

The CORD protests are highlighting the deep fault-lines in our divided society. The contents in social media have been bewildering in the depth and breadth of hostility and hatred, re-affirming the “abusive marriage that is Kenya” metaphor. Equally important the debates (more virtual conflicts actually) are raising important questions about our values as a society.

What is more important: human beings or property? What do we mean by rule of law? Should organisers of protests be held to account for the destruction of property by others who may or may not have been part of the protests? And what is the role of the police and authorities during protests, and what to do when agent provocateurs and thugs infiltrate protests?

But first, the reactions to the CORD protests by the IEBC and Jubilee have confirmed the lack of impartiality, suitability and credibility of the current IEBC, making it incredibly risky to go into elections with the status quo. If this is maintained, there will be unbelievable tensions before, during and after the elections, with the only credible outcome being a loss for Jubilee. It is in Jubilee’s best interest that this status quo is changed.

Both the IEBC and Jubilee have fallen into the trap set for them with these protests. The issues around IEBC have been well known and its lack of independence, competence and courage has been stark since 2013 complete with scandals galore. Offers to dialogue were turned down summarily as IEBC and Jubilee decided that might is right.

The recent defiant, naïve, and foolhardy statement that the Commissioners would rather go to jail than resign in the public interest evokes memories of Amos Kimunya’s false bravado some years back and the Commissioners would be wise to remember that.

Are the Commissioners ready to bear the responsibility of blood on their hands as we descend further into chaos?

It is clear that people were terribly beaten up in the protests and the video clip of the police mercilessly beating up a man lying down, unarmed and clearly subdued, has damaged our reputation globally. This was not a thrashing: This was attempted murder pure and simple.

The survivor asserts that he was not even part of the protests. But even if he was, did he deserve this brutal, cruel and inhuman treatment? Even if he was looting, is this punishment proportional to the alleged crime? True, we often lynch pickpockets in Kenya, which is criminal enough, but when those responsible for protecting us, at our expense, become such obvious law breakers, then we are in serious trouble.

Any competent lawyer will tell you that restrictions or limitations of human rights and law must pass the three pronged test of legality, proportionality and necessity. That is, the limitation on the right or punishment for a crime must be prescribed by law. And this means statute law, not the Standing Orders of the police. Proportionality means that the punishment must fit the crime, and necessity means that the tactic chosen was necessary to limit the right at the time.

Beating up a person to an inch of his life — whether for protesting, destroying property or looting — is certainly not legal, proportionate nor necessary. The police officers faced no risk or threat whatsoever and they have breached the law. And in law, taking of a life, or attempting to take a life is only justified if other lives, including those of the police, are clearly threatened. Protecting property is not and will never be justifiable in a state with rule of law.

DESTROYING PROPERTY

As for the rule of law questions, it is our individual decision to choose whatever legal means to express ourselves and make demands on authorities. Destroying property and looting is a breach of the rule of law, and the sanction for that is clear: Arrest the perpetrators and charge them with theft and destruction in a court of law.

Rather than placing the blame on protestors, we should be pressuring the police to do their job, and arrest the thieves and thugs who are interfering with those peacefully protesting. The presence of thugs and agent provocateurs in a protest is not enough to disperse the protest and beat people, including innocent bystanders mercilessly. The police must extract those creating violence and arrest them, leaving the other peaceful protesters to continue exercising their individual right to peaceful assembly.

Incidentally, protesting is part of the rule of law and CORD, Jubilee, Amani and KANU can choose this approach to make their demands. It need not be a tactic of last resort. Moreover, we adjudge the peacefulness or otherwise from the stated intentions of the organisers, so any violence or destruction should not be attributed to them.

Again, as any half-decent lawyer will tell you, holding someone accountable for the deeds of another over whom you have no control is the anti-thesis of the rule of law.

Asking CORD to pay for damaged property is legal nonsense and is akin to holding the MP for Mukurweini liable for crimes committed by his constituents, for example. It is illegal, therefore, to hold organisers accountable for the destruction of property by others unless it can be shown that they were in the direct control of the organisers.

Now this is different for the police or other armed and organised groups. The police chain of command means that those in charge are held responsible for the actions of their subordinates. The top hierarchy must then be held accountable if they do not hold the individual officers responsible.

The law on protests is not about content and our views should not be tainted by the content or organisers of the protests. Sadly, most of us either support or are against protests depending on our ethnic or political views. We must, therefore, welcome Jubilee’s stated intentions to hold peaceful protests in support of IEBC, even though the message that this will send will not help IEBC.

For more information on managing protests see http://freeassembly.net/wp-content/uploads/2016/02/A.HRC_.31.66_E_with_addendum.pdf

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