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It is illegal to impose criminal liability on protest organizers

Nairobi, Kenya, Thursday October 12, 2017/…National Police Service of Kenya is fundamentally violating the constitutionally guaranteed rights and freedoms of people of Kenya police by imposing illegal bear criminal responsibility for any violation by demonstrators. It is illegal to impose criminal liability on protest organizers. The action demonstrates the might of the State and is an assault on the very basic democratic values enshrined in Constitution of Kenya 2010. Biased security institutions create an atmosphere of heightened tension and lose their credibility in the process.

It is deeply disturbing that the Kenya Police despite people of Kenya fighting gallant to secure its functional autonomy and institutional independent in the Constitution remains an executive instrument of social and political repression. Its functional autonomy has grossly been interfered with by both political and bureaucratic arms of the Executive. It is politically biased contrary to Articles 238 and 3239 of the Constitution. When security services and other state actors who are supposed to act independently and impartially are thought to be taking sides, it creates spite and rancor. This is what happened with 2007 general election with serious ramifications.

The police have no authority to impose criminal responsibility as a condition for notifying police of demonstrations. Such a condition amounts to a violation of the freedom to protest. Courts have ruled many times that the responsibility for ensuring public order at demonstrations rests exclusively with the police, and the police cannot transfer this responsibility to protesters. Furthermore, the organizers of the demonstrations cannot guarantee that all participants in the demonstration behave in accordance with the law.

The police convey a message that anyone who dares to exercise their right to protest is being targeted. This is instilling fear. It is clear that this condition is not permitted, and that the organizers have no practical way of guaranteeing the behaviour of all participants in the demonstration. It is the police’s role to assist the organizers of demonstrations to exercise their rights and not to put unnecessary obstacles in their way.  We note that the Presidency in unconstitutional step in May 2016 placed the National Intelligence Service (NIS) under his control. NIS has strongly been accused of political bias, unprofessionalism and unconstitutional acts.

The rights to protest is a fundamental right of speech and assemble. It is an affirmative obligation of the State to make that exercise of this right effective. The freedoms and rights that people of Kenya are enjoying today and enshrined in the Constitution are product of the street demonstrations. Recent experiences have shown that the President Uhuru Kenyatta’s political establishment encourages the use of police powers to render weak and otiose the exercise of such rights.

Freedom of speech, right to assemble and demonstrate by holding street protests and peaceful agitation are the basic features of a democratic system. The people of a democratic country have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the government and or its agency on any subject of social or national importance. The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions.

 In conclusion, it is significant to note that the freedom of speech and expression (protest is form of expression) is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succor and protection to all other liberties. It has been truly said that it is the mother of all other liberties. It plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a "basic human right", and "a natural right

There exists constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in Kenya. The framers of Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression.

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Ndung'u Wainaina

 

Executive Director