High Court protects anti-tax protesters from violent police tactics

A police officer fires a tear gas canister in Nairobi on June 20, 2024, during protests against the proposed Finance Bill 2024.


Photo credit: Evans Habil| Nation

Kenyans have won a major victory after the High Court in Malindi temporarily restrained the police from using water cannons, tear gas, live ammunition, rubber bullets, crude weapons, brutal force or any form of violence against people protesting against the Finance Bill 2024. 
Justice Mugure Thande also issued orders restraining the police from any extrajudicial killing, arrest, abduction, detention, harassment, intimidation, torture, cruel, inhuman and degrading treatment of protesters, pending the hearing of a petition challenging police brutality in the country.

The judge said the petitioner, Saitabao Ole Kanchory, had shown that the petition was arguable and not frivolous.
“The petitioner has demonstrated that it is in the public interest that the orders sought are granted. In light of the foregoing, I am satisfied that the tests for the grant of conservatory orders have been met. I accordingly allow the prayers two and three of the application,” said Justice Thande.

The judge also ruled that Mr Kanchory has demonstrated that unless the orders sought are granted,  the petition would be rendered nugatory were it to succeed.
Justice Thande has directed the application to be served on the Inspector General of Police Japheth Koome, Interior Cabinet Secretary Kithure Kindiki, Attorney General Justin Muturi and the Independent Policing Oversight Authority who have been sued in the case.
The documents will also be served on the Kenta National Commission on Human Rights (KNCHR) and the Law Society of Kenya (LSK) which have been listed as the  interested parties 
The respondents are to be served with the documents by July 1, they are then to file their responses by July 15.
Mr Kanchory filed this case under a certificate of urgency following the protests that have rocked the country for the past week leading to the arrests, abductions and killing of innocent Kenyans who were protesting against the controversial Finance Bill, 2024. 
The petitioner pleaded with the court to stop the government from using brutal force, abducting Kenyans, killing or injuring them and or teargassing them while exercising their constitutional rights against what he termed state-oppressive policies  
The petitioner who is also an advocate has also asked the court to stop the state from using weapons or draconian measures and from deploying brute force or any form of violence against persons protesting against the Finance Bill, 2024 pending the hearing and determination of the petition he has filed.
“The petitioner prays that Mr Koome and Prof Kindiki be and are hereby prohibited from committing any extrajudicial killings, arrests, abductions, detentions, harassment, intimidation, torture, cruel, inhuman and degrading treatment of persons protesting against the Finance Bill, 2024 pending the hearing and determination of this petition,” said the advocate.

The advocate also wants Mr Koome and Prof Kindiki prohibited from interfering with the right to freedom of expression and association through social media platforms such as X (Formerly Twitter), Tiktok, Instagram, YouTube or any other online platform by shutting down the internet or limiting internet connectivity pending the conclusion of the petitioner.
Mr Kanchory also wants the IG and then CS Interior prohibited from imposing any curfews or other restrictions which may limit or fetter the enjoyment of fundamental rights and freedoms of persons protesting against the Finance Bill, 2024
Through his Kanchory & Company Advocates, the petitioner has asked the court to prioritize the case given the tremendous public interest in the matter and the issues it raises
He has based his case on the fact that in the exercise of their fundamental freedom of expression and the right to assembly, picket and demonstrate, the young people of Kenya now popularly known as Generation Z (Gen Z) have in the past few days staged nationwide peaceful protests against what they perceive to be excessive, inhumane and insensitive taxes introduced by the Finance Bill, 2024.
While asking the court to take judicial notice of the issue which has quickly gained national and international notoriety, the advocate said the Gen Z protesters have in the exercise of their rights and fundamental freedoms remained unarmed, peaceful and even good-natured but have been met with police brutalities, extrajudicial killings, illegal arrests, abductions, detention, intimidation, harassment, torture, cruel, inhuman and degrading treatment and other excesses and violence.
“The police acting under instructions from Mr Koome and Prof Kindiki have responded to these peaceful protests by use of brute force and violence. They have deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons against peaceful and unarmed protesters,” Mr Kanchory told the judge.
In the petition, Mr Kanchory has disclosed to the court that the state has sponsored violence against peaceful protesters exercising their democratic rights resulting in several innocent young Kenyans losing their lives and scores of others wounded.
In addition to state-sponsored violence, the advocate told the court that police, who are supposed to protect Kenyans,  have also resorted to arbitrary arrests and illegal abductions of protesters and to intimidation and harassment of their perceived ring leaders hence violating their right to liberty and their illimitable freedom from torture and from cruel, inhuman and degrading treatment fundamentally safeguarded under the Constitution. 
He has also blamed  Mr Koome and Prof Kinidki accusing them of deploying the Directorate of Criminal Investigations officers (DCI) to harass and intimidate perceived leaders of Gen Z. 
The advocate has also accused Mr Koome of deploying armed police officers some sinisterly in civilian clothes against acceptable standards of professionalism and discipline of the National Police Service. 
“Mr Koome has failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and the relevant provisions of the National Police Service Act (cap 84) in that he has failed to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society,” said the advocate
Mr Kanchory has in the petition outlined the rights and fundamental freedoms violated by the state, including those he argues cannot be limited under any circumstances. 
These he said include freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to a fair trial and the right to an order of habeas corpus.
“Gen Zs being youth, are members of a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution,” he said 
According to the advocate, there is reason to believe that Prof Kindiki may seek to shut down the internet and impose curfews in the guise of public order thus further violating the constitutional rights and freedoms of Kenyans. 
“The Gen Z protesters have been mobilizing and associating through social media platforms such as X (Formerly Twitter), Tiktok, Instagram which would be affected if the  respondents interfere with internet connectivity in Kenya,” said the advocate
He told the court that Gen Z had planned further peaceful protests against the Finance Bill, 2024 and hence they need protection from brutality and excesses of the police.
“Unless this court issues immediate preservatory orders restraining the respondents, the constitutional rights of Gen Z and other peaceful protesters will continue to be violated, denied, infringed and threatened,” said the advocate 
In addition to this application, the advocate said he has filed a petition on his own behalf and on behalf of the young people of Kenya now popularly known as Generation Z (Gen Z) and Kenyans at large.
“This court is the guardian of the Constitution and not only has jurisdiction to hear and determine this petition but it also has an obligation to respect, uphold and defend the Constitution,” said the advocate 
Mr Kanchory has told the court that he has filed the case as a public interest matter on behalf of Kenyans generally alleging gross and serious violations of fundamental rights and freedoms under the Constitution.
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