LEGAL ALIGNMENT OF LAW ENFORCEMENT ACTIONS DURING PUBLIC ASSEMBLIES

INTRODUCTION 

In Kenya, the youth continue to be an influential force for social change. Whenever the  government comes up with proposals that are against public interests, the youth show up in the  streets to protest against them. Such demonstrations are also triggered by how police brutally  handle individuals during arrest and detention. However, as the youths peacefully raise their  concerns, the police deviate from their duty to protect protesters and begin to respond with  violent force. Such situations necessitate urgent scrutiny of law-enforcement actions. 

LEGAL FRAMEWORK 

Freedom of assembly is a right recognized under Article 37 of Constitution of Kenya,2010 which states that every person has the right, peaceably and unarmed, to assemble, to  demonstrate, to picket, and to present petitions to public authorities1. This right is not absolute  and therefore can be subject to limitations by law provided that it is reasonable and justifiable as  provided under Article 24 of Constitution of Kenya,2010. 

The state and every other organ are required under the constitution to guarantee enjoyment of all  rights. Of much concern is the protection of the freedom of assembly which is not actually being  seen to be the case in Kenya. It requires the state to prevent others from interfering with  enjoyment of right which can be done by having regulations and legal guarantees. 

Public meetings and processions are regulated by Public Order Act. This includes the need to  inform the regulating officer of an intention to have a public meeting or procession which should  be done at least three days and at most fourteen days prior to the date set for the public  meeting2.Whenever it is not possible to have the public meeting for any reason such as there is  another meeting set to take place at the same time and place, the regulating officer should inform  the organizer3.Section 4(1) prohibits the wearing of any distinctive dress which signifies any  association with any political organisations4. Any public assembly conducted contrary to section  5 (1) and (2) shall be deemed to be an unlawful assembly.Section 6 prohibits use of offensive  weapons at public meetings and processions. This is to make sure that it is peaceful and to avoid  causing harm to anyone present. 

Penal Code-Section 78 restricts on the freedom of assembly by prohibiting unlawful assembly.  It defines an unlawful assembly to mean that when three or more people get together with the intent to commit a crime, or when they are called together to accomplish a common goal, and  they act in a way that gives neighbors a legitimate reason to fear that these people will break the  peace, or that they will unintentionally and without cause incite others to cause breach of peace.5 

Police Act-Under Section 16, the police are obligated to ensure the assemblies conducted on  public roads do not cause obstruction. 

National Police Service Act– Section 54(1)(b) of National Police Service Act reiterates on the  provisions of Section 16 of Police Act where the Kenya Police Service are tasked with the role of  ensuring that there is no obstruction of public roads and streets during assemblies. Section 61  provides that police officers should exercise their powers by use of non-violent means and if  there is to be use of force and firearms, then it should be done in accordance with the rules  contained in the sixth schedule. 

Article 21 of International Covenant on Civil and Political Rights recognizes the right of  peaceful assembly. Any limitation on this right has to be lawful and necessary to ensure there is  national security, public order and safety. Further restrictions can be imposed to protect the rights  and freedom of others. 

ANALYSIS 

Despite clear statement by the provision in Article 37 of Constitution of Kenya that while  exercising this freedom it should be peaceful, the recent Gen-z protests are not always peaceful.  The police used unreasonable force which was unequal to that of the protestors by use of teargas,  water cannons, live ammunition and also rubber bullets. The response by the police raises  questions on how then should this right be exercised because the protestors were in fact peaceful  because all they could carry were bottles of water and handkerchiefs. The police do not allow the  protesters to assemble since they threw tear gas at them and used bullets to disperse them. 

Freedom of assembly is a right that actually provides an alternative form on how people  participate in democracy and also creates an avenue where people express their opinions. What  has to be understood is that the assembly has to be lawful and the key elements that have to be  looked at are time, place and manner in which people assemble, notification requirements and  peacefulness. In the case of Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12  others6Justice Onguto highlighted on how to ensure assemblies are in tandem with the provisions  of the Public Order Act. His view was that assemblies should not take place in private property  and should appropriately be chosen by organizers. The public streets should be open to the public  for assemblies. The time chosen by organizers should be reasonable as well. 

With the current thriving protest culture in Kenya, most assemblies are planned and no prior notifications are given to the state which would have allowed the state to plan on how to  facilitate the protests. The reasons as to why prior notifications should be made are that there  may be disruption of normal day activities and to have the police provide security to both participants and non-participants of the assembly. The organizers of the assembly should notify  the regulating officer. 

Article 37 of Constitution of Kenya,2010 itself makes provisions that one can only assemble  “peaceably” and “unarmed”. The moment the protesters arm themselves with tools that are  deemed to be used to cause violence, the assembly automatically becomes unlawful. Section 11  of Public Orders Act criminalizes holding offensive weapons and one is liable to imprisonment  of up to two years or a fine. The organizers and the police are responsible for the peacefulness of  the assembly. In order to ensure there is peaceful assembly, the police and organizers should  meet to discuss and align their respective guidelines. With this, the goal is to find common  ground on how to manage peaceful assemblies. 

The state has positive obligation to protect this fundamental freedom and can only suppress it  when there are justifiable reasons which may include; 

i) If the gathering is more likely to present an imminent danger of breach of peace or public  order7. 

ii) If there is a threat to national security8. This can be done especially when it can be reasonably foreseen that the unrestricted assembly is more likely to cause spontaneous protests. Measures  that can be taken by the state are police deployment, imposition of curfews and in extreme  situations deployment of Kenya Defence Forces(KDF).However, during the recent Gen-z  protests, the state do not comply with requirements of the law as enshrined in different  legislations governing deployment of police and military (KDF). Police were seen to have used  excessive force by using firearms which was disproportionate to that of the protesters. The KDF  are always deployed without following the right procedure of gazettement. 

COMPARATIVE ANALYSIS 

United States of America has a well-established legal framework that governs how freedom of  assembly should be exercised. The First Amendment (Amendment I) to the United States  Constitution prevent the making of any laws that curtail the freedom of assembly. It clearly states  that this right applies to public forums which include streets and parks. In contrast to Kenya, the  USA does not need advance notice for gatherings and restricts police authority when it comes to  prohibiting protests. These clauses, which lessen the constraints on the right to assemble,  demonstrate how highly valued the USA considers this freedom. 

WAYFORWARD 

To begin with, the existing legal framework should be strengthened. This can be done by  revising the laws and policies regarding public order policing and use of force. Further, training  of law enforcers should be conducted to ensure the police understand their duties when it comes  to handling protesters and use of appropriate measure to maintain public order. The state should also create awareness to the public on how they should conduct themselves during public  assemblies as well as give guidance on how to report police misconduct to have them  accountable for their conduct. 

CONCLUSION 

This paper concludes that the current enforcement of freedom of assembly by security agencies departs greatly from original purpose of the Constitution, which was to give citizens a way to  voice their grievances to public authorities. 

BIBLIOGRAPHY  

1. Constitution of Kenya  

Statutes 

1. Public Order Act 
2. Penal Code 
3. International Covenant on Civil and Political Rights 

Cases 

1. Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others

1 Constitution of Kenya, Art 37 

2 Public Order Act, Sec 5(2) 

3 Public Order Act, Sec 5(4) 

4 Public Order Act, Sec 4(1)

5 Penal Code, Sec 78 

6[2016] eKLR

7 Public Order Act, Sec 5(8)(b) 

8 Constitution of Kenya, Art 238(1)