Kenyans took to a referendum on August 4, 2009 to vote in a new constitution following the mutilation of the initial supreme law by previous regimes. A disregard of the rule of law and wanton disrespect of human rights was a classic feature in the pre-2010 constitutional era.
Widely hailed for its expansive Bill of Rights, the new Constitution is a reflection of the country’s dark history and seeks to address the historical concerns of Kenyans. With increased cases of human rights violations, coupled with a lack of trust in the Judiciary, it provides a reprieve for Kenyans who seek to voice their concerns.
Article 37 guarantees the right to assemble, demonstrate, picket and present petitions to public authorities peaceably and unarmed. This highlights our strength as a people, upon whom the ultimate power rests. It’s also a crucial tool for the civil society, providing a platform to raise the people’s concerns and hold duty bearers to account where systems have failed.
The Public Order Act, which regulates the holding of public meetings and processions under Article 37 of the Constitution, makes it a requirement for the organiser to notify the regulating officer of such intent at least three days, but not more than 14, before the proposed date of the meeting or procession.
The notification includes the name and physical address of the organiser, proposed site or route and time of the event. If it’s not possible to hold the gathering, the organiser must be notified in writing and the notice delivered to them at the physical address provided.
The proposed amendments to this Act now seek to place a burden upon the organiser for any mischief during the public meeting.
The organiser may now have to compensate affected persons for their harm, loss of property or loss of earnings during the public meeting of procession.
The result of this legislation would be catastrophic to the enjoyment of the right to peaceably assemble — the cornerstone of civic space — as there would be a possibility of persons opposed to the gathering creating havoc with the intention of frustrating the cause of the organiser.
Additionally, the Statute Law Miscellaneous Amendment Bill 2019, which, in part, seeks to amend the Prevention of Terrorism Act 2012, introduces a dangerous provision.
Tramples on independence
It proposes that the National Counter-Terrorism Centre be an approving and reporting institution for all civil society organisations and international non-governmental organisations engaged in preventing and countering violent extremism and radicalisation through counter-messaging or public outreach, and disengagement and reintegration of radicalised individuals.
This provision tramples on the independence of civil society organisations CSOs).
Over the years, CSOs have been at the heart of the struggle for social justice and change and have proven to be an essential ingredient in implementing the development agenda. Their strength and credibility has always been their independence from perceived perpetrators of social injustice, which, in some cases, has been the State.
Requiring CSOs to seek approval and report to a government agency stifles the trust that the common mwananchi has for them.
Whereas prevention and countering violent extremism remains a concerted effort of both state and non-state actors, and in acknowledging the crucial role played by the centre in coordinating the fight against this vice, the independence of the civil society in this fight has contributed greatly to the reduction of cases of recruitment and radicalisation.
In fact, one of the driving factors into terrorism remains the disconnect between the public and the State. The numerous cases of alleged extrajudicial killings have only served to widen the drift with victims of such incidents and their families viewing the government in negative light.
Gone are the days a Kenyan would entertain repressive laws in the name of national security. Luckily, the framers of the Constitution had this in mind and, as such, made provisions for limiting fundamental rights and freedoms.
Article 24 introduced a test that calls for the limitation to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The clause takes into account the nature of the right or freedom, the importance and the purpose of the limitation, the nature and extent of the limitation and the relationship between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose, among others.
Whether a limitation is justified remains a question of judicial interpretation.
Mr Lusweti is a human rights lawyer based in Mombasa. [email protected]