On 15th March 2019, the Public Order (Amendment) Bill sponsored by Ruiru M.P. Hon. Simon King’ara was introduced to Parliament as a Private Member’s Bill. This Bill has the principal object of amending the Public Order Act (1950) to impose liability on organisers of protests, requiring them to compensate or take responsibility for any loss of property, life, or earnings resulting from the protest.
While the Public Order Act needs to be amended in order to ensure the enjoyment of the right to freedom of assembly to the full extent provided by Article 37 of Kenya’s constitution and international standards, the proposed amendment, in this case, is not welcome. If approved, the Act would further stifle enjoyment of the constitutionally guaranteed right.
Organisers of public gatherings and protests play an important role in the operation of the right to freedom of assembly. Their role as provided in Section 5(7) of the Act is to assist police in ensuring the maintenance of law and order. They act as a bridge between protesters and the police by ensuring assemblies and protests remain lawful. This is vital because the constitution guarantees freedom of assembly only to the extent that is lawful. The police have a right to disperse any protest where the law is violated and where such dispersal is seen to be reasonable and necessary.
The organisers thus play a much needed role in ensuring the meeting stays within the bounds of the law. However, placing the extent of responsibility that the amendment proposes constitutes an unfair limitation on the enjoyment of the right.
To put this into context, we should consider Kenya’s history in management of protests. In their 2016 report, the Independent Policing Oversight Authority (IPOA) found that at least 5 people died and 60 were wounded by police as they disrupted series of Anti-IEBC demonstrations held on April 25th, May 9th, 16th, 23rd and June 6th 2016 across the country. Similar reports have been published by human rights groups through the years with the police use of lethal force highlighted as a common feature in all of them.
The violence experienced betrays complex relationships between the police and citizens protesting. While protesters may indeed be involved in violence, the police are at times the first to engage through throwing tear gas or beating people with batons.
Were the amendments proposed by Hon. King’ara to pass, organisers of protests would be held liable and face unto one year in prison on the basis of vague provisions of law that permit police to disperse protests where the Act merely requires that police show there is clear, present or imminent danger of a breach of the peace or public order. Already, there is overwhelming evidence of police abusing the provision to disperse protests.
The amendments would further place a chilling effect on the right to freedom of assembly where people would refrain from organising protests for fear of unfairly being held responsible. Yet, international best practice requires that police first isolate and arrest individuals engaging in unlawful conduct.
Liability for criminal acts should be personal such that only the person proven to engage in criminal acts should be held responsible. Organisers of protests and protesters should not be held responsible unless for personal acts that are criminalised. The amendment Bill should not be passed by parliament.
By Brian Kimari. The writer is a Junior Research Fellow, Centre for Human Rights and Policy Studies .
This opinion piece was published in the Standard newspaper May 2019.