The Constitution of Kenya is the pillar of the right to demonstrate, picket, assemble, and present petitions to public authorities. This is provided for under Article 37. However, as the US Supreme Court Judge Justice Oliver Wendell Holmes, Jr. observed, “The right to swing my fist ends where the other man’s nose begins;”[1] The right under Article 37 has a rider that a person enjoying that right should be unarmed and that the process should be peaceful. This article shall highlight the foundation of the right to picket and protest, the duties of all the parties involved, and the legacy of the right since it was enshrined in the Constitution.
Protesters’ rights and duties
It is the protester’s burden to ensure that the exercise is within the limitations of the Constitution. The Public Order Act (Cap 56 of the Laws of Kenya) requires the protest organizer to give a notice to the “regulating officer” before the protests.[2] Section 2 of the same act defines a regulating officer as “a police officer in charge of a police station in an area where the public meeting (protests) will be held.” The organizer is also required to always be present in the protest to help the police maintain law and order.[3] Failure of the organizer to be present and assist the police amounts to an offense.[4]
In line with the Constitution, the Public Order Act bars any person attending the protest or procession from carrying “offensive weapons.” This is obviously to curb any attacks on the protesters or the public.
The protesters have a right to challenge any person barring them from enjoying this right. Article 22 of the Constitution gives Kenyans the right to institute proceeding claims where a right or freedom has been denied, violated, or infringed. As such, the petitioner in Gideon Omare v Machakos University [2019] eKLR, sought to have the court declare regulations enacted by the Respondent that barred the petitioner from picketing, demonstrating, or holding peaceful assemblies. The court agreed with the petitioner and the affected regulations were declared null and void and unconstitutional.
The right to picket and protest is considered to be unalienable and is not supposed to be interfered with by the State. Article 19 (3) (a) provides that all rights belong to each individual and are not granted by the state. The relevance of this provision is that it protects the rights provided for in the constitution, including the right to protest, from interference by the state.
Mandate of the police and Restriction
Part III of the Public Order Act mandates the police to prevent or postpone a public meeting where there is doubt that such a meeting does not meet the constitutional limitations.[5] The Part gives the police power to rely on their discretion in assessing imminent threats to the peace or public order. Generally, the powers of the police in protests are anchored in the Public Order Act (Cap 56), The National Police Service Act, and Article 244 of the Constitution.
The police being the “referees” of the limitation envisioned in Article 37 ought to be guided by the following test to limit a right. First any restriction ordered by the police must be within the law. This means that there has to be a precedential structure formulated to enable an individual to guide the restrictions.[6]
Secondly, the restriction must be designed to achieve a legitimate aim. This means that it should show respect for the rights or reputation of others and seek to protect national security, public order, health, and morals.[7] Finally, the restriction should be necessary and proportionate to secure the legitimate aim. Necessity means that there ought to be mimetic forces from society to restrict. This test was well discussed in the case of Gideon Omare v Machakos University [2019] eKLR.
The court in Gideon Omare v Machakos University [2019] eKLR generally settled that reasonability and proportionality are key in enforcing the limits to the right. It relied on the persuasive decision in R v Oakes (1986) DLR 4TH 200, which was relied on in Martha Karua vs. Radio Africa Ltd t/a Kiss F.M. Station & 2 Others [2006] eKLR where Emukule J opined that: [8]
“On the issue of reasonableness about the limitation we fully approve and endorse the reasoning in the Canadian case of R v OAKES (1986) 26 DLR 4TH 200. One of the principles in the case concerning the reasonableness of the limitation is that the interest underlying the limitation must be of sufficient importance to outweigh the constitutionally protected right and the means must be proportional to the object of the limitation. Our interpretation of the use of reasonableness in the limitation clause is that since what is at stake is the limitation of fundamental rights, that must mean the legislative objective of the limitation law must be motivated by substantial as opposed to trivial concerns and directed towards goals in harmony with the values underlying a democratic society.”
Relating the above to the right to picket and protest, it would be improper for the police to restrict the exercise of the right where it can be seen that the restriction is politically motivated. Further, the decision of the court strengthens the provisions of the Public Order Act (Cap 56), in the sense that where the right to picket and protest does not affect the harmony of the society then the limiting provisions of the Act are overlapped by the Constitution.
Interestingly, the right to picket and protest under Article 37 is also granted to children. Section 28 of the Children Act provides children with a similar right as envisaged in Article 37.[9] As of the time of writing this article, no case law has been reported nor incident where such a right has been exercised by the minors.
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By Law Query LTD Team
[1] https://ethicsunwrapped.utexas.edu/glossary/harm-principle#:~:text=The%20harm%20principle%20is%20often,not%20cause%20harm%20to%20others. As accessed on 17th July 2023.
[2] Section 5 of the Public Order Act, Cap 56 of the Laws of Kenya
[3] Ngunjiri Wambugu v Inspector General of Police, & 2 others [2019] eKLR
[4] Part III of the Public Order Act, Cap 56 of the Laws of Kenya
[5] Part III of the Public Order Act, Cap 56 of the Laws of Kenya
[6] see, Human Rights Committee, Leonardus J.M. de Groot v. The Netherlands, No. 578/1994, U.N. Doc. CCPR/C/54/D/578/1994 (1995
[7] Article 19 (3) (a) (b) of the International Covenant on Civil and Political Rights (ICCPR)
[8] Gideon Omare v Machakos University [2019] eKLR
[9] Section 28 of the Children Act, No. 29 of 2022