On Thursday, Interior Cabinet Secretary Fred Matiang’i announced that the government had banned election-related protests by National Super Alliance supporters in the central business districts of Nairobi, Mombasa and Kisumu.
This was an apparent reaction to the chaos and looting attributed to protesters earlier in the week.
The government justified its directive on what it termed the escalation of lawlessness, breach of peace and public order during demonstrations.
The world over, the right to protest is recognised as a fundamental human right that has caused positive change.
Article 37 of the Constitution of Kenya provides that “every person has a right to peaceably and unarmed; assemble, demonstrate, picket and present petition to public authorities.”
So what is the role and nature of this right? What is the role of the State and specifically the police?
What are the responsibilities of the protesters? And, what criteria are used when allowing or disallowing protests?
The Nasa protests have become the hallmark and embodiment of the political impasse being experienced in Kenya.
It is noteworthy that, by its very nature, the right to protest is inconveniencing, disruptive and uncomfortable.
It tends to force conversations that the status quo is not willing to have.
It is especially useful to the disenfranchised and the marginalised in that is compels the mainstream to pause and think.
Under Article 21 of the Constitution, it is the fundamental duty of the State and every State organ, including the police, to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights including the right to peaceably assemble.
More often than not, some protesters are seen wielding large stones. However, Article 37 only confers the right to assemble to those who are peaceable and unarmed.
As such, wielding any material that can be used as a weapon negates your right to assemble.
Many may argue that this is a hangover of the confrontational protests in the 1990s that brought about multiparty democracy.
However, the Constitution is clear and concise on this one.
Organisers have a responsibility to notify the authorities of the place and time and purpose of the planned assembly to allow the State to plan how it will best protect the assembly.
Organisers should be concerned for the safety of the public attending the event as well as those who may in any way be affected by it.
This means that they should have strategically placed peace marshals who liaise with the police on how best to protect the procession from intruders.
When organisers and the police cooperate, it becomes easier for the authorities to identify lawbreakers.
Peaceful protests are often infiltrated by those who are minded to steal and loot from others.
Regarding the legality of the directive by Dr Matiang’i, one only needs to ask whether it meets the conditions provided under international law and Article 24 of the Constitution.
This has a three-part test: Any limitation must, firstly, be prescribed by law; secondly, be necessary and proportionate in an open and democratic society; and, thirdly, must be in pursuance of a legitimate aim in the interest of national security, public safety, prevention of disorder and crime, protection of health and morals and the protection of the rights and freedoms of others.
The directive may satisfy the conditions under the first test seeing that it relied on a written law, which is Section 5 of the Public Order Act of 1950.
However, many argue that the Act is a relic of our colonial past since it was passed at the height of the Mau Mau state of emergency and that it contains many provisions that are not in line with the 2010 Constitution.
The directive also satisfies the third test because it pursues the legitimate aims of public safety, prevention of disorder and crime as well as the protection of the rights and freedoms of others.
The crux of this matter lies in the question as to whether the directive meets the second test regarding necessity and proportionality in an open and democratic society.
The mere fact that the directive only targets protests by the opposition may lead many to believe that the objectives are politically motivated.
The government and the police should explore other strategies to tackle looting and destruction of property.
As we sort out the political impasse, the IEBC, political parties and other stakeholders should ensure that all interventions are in pursuance of our national values and principles of governance that include patriotism, national unity, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability.
It beats the purpose to have one without the other!