Right to demonstrate thrives with an independent and professional police service

Article 37 of the Constitution is short and straightforward. It provides for the right to assembly, demonstration, picketing, and petition.

It specifically states that “every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

Before discussing what the right in Article 37 entails, it is important to remember what the Constitution says about the source of constitutional rights and freedoms. That: “rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State”. That is in Article 19.

 The content of Article 37 Right

So what exactly does the right to assembly, demonstration, picketing and petition entail? Or as lawyers and judges would ask, what is the content of Article 37 right?

Or to put it plainly what is or is not a right in Article 37?

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Article 37, unlike many rights provisions in the Constitution, has an interesting twist to it. It requires that those seeking to enjoy the right must do so peacefully and unarmed. This then becomes consequential.

Can a person who is not peaceful or is armed and attending a demonstration still insist that they are exercising their Article 37 right? No.

The use of the terms “peaceably and unarmed” in Article 37 is what the law calls an “internal qualifier” – meaning that the right is not available in the first place if the person claiming to be exercising the right is armed or not peaceful.

Preventing such a person from engaging in a demonstration does not mean that their right to demonstration is being limited – it is that they cannot claim the right in the first place, period.

But what should happen if one or more demonstrators either bear arms or are not peaceful during the demonstration? What does the constitution expect in a situation where two rival groups decide to protest at the same time and in the same place or within each’s vicinity?

What happens when a demonstration starts in a peaceful manner but some demonstrators turn violent after some time? What should happen if the violence is instigated by the police and not the demonstrators?

What to do with one bad apple in a barrel

Courts in Kenya - and those from other jurisdictions with a constitutional right to assembly and demonstration similar to ours - have dealt with these issues and more.

To start, Article 37 right can be exercised singularly and collectively. A single person who chooses to dramatically but peacefully walk down Harambee avenue to go and present a petition at Harambee house is exercising his or her Article 37 right.

The fact that one exercises their Article 37 rights within a group and hence collectively does not take away their individual entitlement to the right.

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This is important and this is why.

Assume 10 people are in a demonstration and all of a sudden 2 of them decide to turn violent, what happens to the right of the remaining 8? You may invert the numbers if you wish.

In such circumstances, the law expects the police – who are legally obligated to facilitate Article 37 right – to separate the 2 who, because they are no longer peaceful, have lost their right to demonstrate.

The law does not expect the police to disrupt the entire demonstration, because doing so, means the police have interfered with the right of all those who wish to demonstrate and are doing so peacefully.

In other words, enforcement of Article 37 right does not follow the rule of “one bad apple spoils the whole barrel” – instead, it requires the police to be proactive and root out the “bad apple” leaving the rest to their freshness.

Some will be saying here: “this is too much theory, be real.”

But this is not a theory. In places where police are well trained, professional, impartial, and not pawns in political shenanigans that often accompany or prompt demonstrations, police stay close enough, constantly monitoring the demonstrations, and are quick to spot violent demonstrators and restrain them, leaving the peaceful demonstrators to carry on with their protest activity.

It is actually not uncommon that professionally disposed of police service are able to successfully facilitate rival demonstrations within the same vicinity.

It is not that our police are not capable of mastering the skills the constitution anticipates them to have to deal with assemblies and demonstrations.

However, because for eons, those in power have conditioned the police to serve them and not the people or the law, our police are often excitable and so eager to stop demonstrations using unnecessary and brutal force.

It’s all about an independent professional police service

Before I end, one anecdote is worth highlighting. At the dawn of the new Constitution in 2011, Eugene Wamalwa notified of an assembly that was to be attended by among others, Maina Njenga – the then-leader of Mungiki.

The police said his assembly was illegal. Wamalwa went to Court to challenge the police pronouncement. Justice Daniel Musinga – who is the current President of the Court of Appeal – but a High Court Judge then, said the following about the police:

“The State is capable of ensuring that every person who attends the planned meeting is unarmed. By refusing to allow the planned meeting to proceed on the pretext of security concerns as aforesaid, is tantamount to admitting that the State is incapable of dealing with members of outlawed groups or sects, which is not the case.”

When Kithure Kindiki and Japhet Koome say that demonstrations are illegal (a power they don’t even have) because there is likely to be violence, they are betraying their ignorance about the Constitution and the law. Importantly, they are impeaching the police’s ability to undertake their duties adequately and professionally.

@waikwawanyoike is a constitutional lawyer