Protesters march along Kenyatta Avenue in Nairobi during anti-Finance Bill demos on June 25, 2024.
Stakeholders have called on Members of Parliament to reject the Demonstration Bill, 2024 currently before the House on grounds that it violates the constitution on the rights to hold peaceful protests and picketing.
Lack of clear role of the police and how to hold them accountable, infringement of rights of protesters and vague definition of key terms that are prone to abuse by law enforcers are leading reasons why members of the public want lawmakers to reject the Bill in its entirety.
Of the 20 stakeholders that have so far appeared before the National Assembly Committee on Administration and Internal Security to give their views on the proposed legislation, none have supported the Bill.
The Bill sponsored by Mbeere North MP Geoffrey Ruku seeks to provide stringent measures on those planning to call for demonstrations by giving the State sweeping powers to clamp down on Kenyans expressing their democratic right.
From the Civil Society network to the Independent Police Oversight Authority (IPOA), Kenya National Commission on Human Rights (KNCHR), National Police Service (NPS) and even a section of the committee members are against the Bill terming it non-progressive and violates Article 37 of the constitution.
Students of Moi University School of Medicine demonstrate against new university funding model in Eldoret on September 09, 2024.
Article 37 of the constitution provides for a peaceful demonstration and picketing hence the use of noise-making gadgets during demonstration interferes with the peaceful co-existence of others who are going about their business.
“Every person has the right, peaceably and unarmed, to assemble, demonstrate, to picket and present petitions to public authorities,” reads the law.
The Police Working Reforms told the committee that the Bill fails to address several critical contemporary issues faced by Kenyan protesters, lacks definition, overlooks fatalities caused by the use of less lethal weapons such as rubber bullets and inadequately addresses responsibility and the role of police in inciting violence during protests.
Anti-Finance Bill protesters in Kisumu on June 25, 2024.
The group termed the provision in the Bill banning the use of placards, singing and chanting during demonstrations as absurd.
“These elements are essential for advocacy as assembly and processions aim to be seen and heard. Such measures undermine the fundamental purpose of processions and assemblies,” the group told MPs.
They also told the committee that the introduction of cleaning fees and authority given to regulating officers to impose conditions on protests lacks justification and is not backed by data.
Anti-Finance Bill demos kicks off in Mombasa.
They say the Bill assumes that property damage, injuries and deaths are caused by protesters while research has shown that police have intentionally and negligently caused harm during public order management.
Transparency International has also opposed the Bill specifically a proposal requiring those planning to hold demonstrations to give notice to police three days before the protests saying it fails to consider spontaneous assemblies which are recognised under the Constitution and also protected under international law.
The IPOA, on its part, opposed section 11 of the Bill which prohibits covering of the face by protesters arguing that there are valid reasons why one may decide to cover their face during protests such as health reasons, religious and other private reasons.
“We are aware some members of a religion cover their faces, are we saying that they should not participate in demonstrations? This Bill cannot therefore purport to take away these rights,” said IPOA CEO Elema Halake.
“The Authority does not support the Bill. Instead, it proposes that the Public Order Act which already provides a robust and well-established legislative framework for regulating public assemblies and demonstrations to align with constitutional provisions,” he added.
The authority said the Bill is misplaced as there is an already ongoing amendment of the Public Order Act being spearheaded by the Office of the Attorney General that seeks to implement the Maraga report on police reforms.
A police officer engages with protesters demonstrating along Kenyatta Avenue in Nairobi during anti-Finance Bill demos on June 25, 2024.
“The Bill should be withdrawn so that we pursue the amendments being undertaken by the Attorney-General in order not to have two concurrent processes going on at the same time,” Mr Halake said.
The Kenya National Commission on Human Rights commissioner Marion Mutugi opposed Clause 8 which set payment costs of cleaning up which may arise out of the holding of the assembly or demonstration as illegal since the government has a duty to clean public spaces.
“It’s the duty of the State to clean up public spaces through taxes paid by the protestors This includes any clean-up costs arising out of the holding of an assembly. This duty should not fall on the assembly organisers,” Ms Mutugi said.
The commission also says the Bill should take into account the evolving nature of assemblies. Traditionally, assemblies have taken place physically. However, with the evolution of the digital space, more and more assemblies and petitions are being carried out online.
Ms Mutugi said it’s the mandate of the police to maintain law and order and that responsibility can’t be passed to protesters as proposed in the Bill.
The commission vice chairperson Dido Raso said the committee will review the views of stakeholders and make its final decision.
“As Parliament, we cannot pass a law that cannot be enforced because it will mean, we will be legislating in vain. A law that does not spell out responsibility on either protesters or enforcers, then it’s a law on a limb,” Mr Raso said.
