Pro-expression lobby links violent protests to non-aligned order act

September 12, 2018 4:40 pm
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According to Article 19, there were 67 peaceful protests during the period with at least two persons were reported to have been arrested and charged in court for causing disturbance/FILE

, NAIROBI, Kenya, Sep 12 – At least thirteen protests held between January and July this year turned violent according to data compiled by a pro-expression lobby group, Article 19.

According to Article 19, there were 67 peaceful protests during the period with at least two persons reported to have been arrested and charged in court for causing disturbance.

Nairobi recorded the highest number of protests at 22.

Twenty-four protests were cumulatively recorded in Mombasa, Kisumu, Usian Gishu, Kiambu, Nakuru, and Lamu where four demonstrations occurred in each of the counties.

According to Article 19’s Regional Director Henry Maina, chaotic protests can be attributed to the inconsistency of the Public Order Act to the Constitution (2010), to the extent that it restrains protesters from exercising the right to peaceful demonstrations as enshrined in Article 37 of the supreme law.

“The Constitution does not directly annul all laws that are inconsistent with it. It only provides that the laws are applied in conformity with the Constitution,” Maina told Capital FM News on the sidelines of a forum with stakeholders in the Governance, Justice, Law, and Order (GJLO) sector.

Section 5 (2) of the Public Order Act requires persons with an intention to convene public meetings to “notify the regulating officer of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession.”

The provision has however been a subject of contention between protesters and the authorities with police officers in charge of jurisdictions where protests are to be held often issuing advisories against proposed demonstrations.

The police have often been blamed for misusing Section 5(4) which states that a regulating officer shall notify organizers of protests “forthwith” if it is not possible to hold a proposed public meeting or procession on an intended date, and time.

According to Article 19, most provisions in Section 5 of the Public Order Act make it difficult for the public to exercise and enjoy the right to protest under Article 37 of the Constitution as notifications for such meetings can easily be ignored.

Police officers have also argued in the past that approvals for protests have to be granted, a position that is in conflict with the Constitution.

The lobby group cited lack of political goodwill and partisan politics as a key impediment to the alignment of the Act dating back to 1950 to the Constitution.

“The biggest challenge on realigning the Act with the Constitution is partisan politics. When people are out of power, they tend to agree that there’s need to reform the pre-independence law, but once they ascend to position of power that seems to be changing,” Maina observed.

He said there was need to reform the legislation to align it to the constitutional provision of the right to peaceful demonstrations to prevent confrontations between protesters and the authorities.

Maina underscored the importance of amending the Act to explicitly provide for the public to exercise the “right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities,” as provided for in Article 37 of the Constitution.

“We think it would be in order for the Attorney General and National Assembly leadership to review all laws that are inimical to fundamental freedoms yet they’ve been kept even after adopting a new constitutional,” he urged.

The call for the review of the Public Order Act came at a time Article 19 released a study showing only nine per cent of Kenyans felt the police should restrain protestors to designated areas to avert loss of property.

The proposal to have designated areas where demonstrations are to be held has been condemned fiercely by civil actors on grounds that the it would violate the constitutional right of protesters “to present petitions to public authorities.”

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