It’s duty of State to protect right of assembly and demonstration

Kenya’s opposition coalition, Cord, has called for countrywide demonstrations to force the ouster of the commissioners of the Independent Electoral and Boundaries Commission.

In the wake of these weekly demos have emerged two schools of thought.

On one hand is a section of legal scholars and pundits who insist that the protests are an exercise of their fundamental rights to assemble and demonstrate and, therefore, police intervention has been unlawful.

On the other are those who place more emphasis on the limitations clause in the Constitution (Article 24) to argue that there are no absolute rights and, therefore, police intervention is justified.

The starting point in analysing the right to assemble and demonstrate is inevitably Article 37 of the Constitution, which stipulates that every person has the right, peacefully and unarmed, to assemble and demonstrate.

It goes without saying that the law protects only peaceful assemblies.

The operative word and also the bone of contention is the term “peaceful”.

Legal scholars have argued that the term “peaceful” should be interpreted to include conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes, or obstructs the activities of third parties.

Those who do not support Cord’s assemblies and demonstrations argue that the exercise of these rights should not come at their expense, including causing traffic jams and slowing down business

The counter arguments to such assertions, whose effect is to seek to limit the exercise of freedom of assembly and demonstration, are that demonstrators have as much a claim to use such public spaces for a reasonable period as any other member of the public.

It is further contended that assemblies and demonstrations should be regarded as equally legitimate uses of public space as the more routine purposes for which public space is used, including conducting business and movement of pedestrians and motor vehicles.

So, what is the role of the State in respect of the rights to assemble and demonstrate?

The State has both positive and negative obligations, both sets of which emanate from the provisions of Article 21(1) of the Constitution.

It provides that the State and its organs have a fundamental duty to observe, respect, protect, promote, and fulfil rights and fundamental freedoms.

In regard to positive obligations, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, Maina Kiai, has in his reports to the Human Rights Council stressed that such obligation includes the protection of participants of peaceful assemblies from individuals or groups of individuals, including agents provocateurs and counter-demonstrators, who aim to disrupt or disperse such assemblies.

Stated differently, the State has a primary duty to protect Cord demonstrators in order to facilitate the exercise of their fundamental rights under our Constitution.

The State equally has negative obligations in regard to the right to assemble and demonstrate.

The primary duty here is for the State to respect the rights by refraining from unduly interfering with assemblies and demonstrations.

Agents of the State such as the police must have reasonable and justifiable grounds for limiting, interfering with, curtailing, or infringing on such fundamental rights.

Why is protecting the right to assemble and demonstrate so critical in a functional democracy?

Assemblies, the argument goes, serve several important purposes. These include expression of diverse, unpopular, or minority opinions.

Protecting freedom of assembly and demonstration is also central to creating a tolerant and pluralistic society where people who differ on beliefs, opinions, practices, and policies can peacefully co-exist.

The courts and the police must, therefore, generously and broadly interpret the clause in the Constitution that allows the limiting of these rights.

As Kofi Annan aptly put it, “if one is going to err, one should err on the side of liberty and freedom”.

Mr Kahuthia is an international human rights law expert and an advocate of the High Court. [email protected]