The International Human Rights Framework on the Right of Peaceful Assembly
Kenya is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Kenya is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Kenya is a state party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Kenya is a state party to the 1998 Protocol on the African Court on Human and Peoples' Rights, but has not allowed the right of petition to the Court by individuals and non-governmental organisations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 37 of Kenya's 2010 Constitution:
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
The right to assemble is not, though, absolute under the Constitution.A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.Article 24, 2010 Constitution of Kenya.
Ferdinand Ndung’u Waititu v. Attorney General (2016)
In his judgment in this case, Justice Joseph Onguto of the High Court noted that there was "no doubt that the right to assemble, demonstrate, picket and petition as enshrined under Article 37 [of the Constitution] is not absolute." It may, he observed, "be limited by law":
Demonstrations and picketing ... provide an avenue for those who have strong feelings about particular issues to express those feelings. Such expressions may take the form of motionless protests, public meetings, protest marches, press-conferences, sit-ins and even counter-demonstrations. ...
Demonstrators, picketers and petition-presenters must do so “peaceably and unarmed”. Assemblies, picketing and demonstrations which are not peaceful are excluded from the protection of the Article. If they consist of violence to or intimidation of the public then the assembly or the demonstration ought to be stopped. Likewise participants in assemblies, picketers and demonstrators must not be armed. Weapons as well as defensive or protective contraptions which breed or stimulate aggression ought not to be possessed by the demonstrators or picketers.
Justice Onguto stated that the "spirit of the constitutional claw-back is to ensure that the rights of others within the vicinity of the place of assembly or of the demonstrators or picketers are also not interfered with." He cited the judgment in the South African case of Fourways Mall (Pty) Ltd. v. South African Commercial Catering 3 SA 752., "it was held that the Constitution as well as statute law does not protect picketers who proceed in a manner that interferes with the rights of the public or assault others." He further affirmed that:
It certainly would be an antithesis of constitutional values and principles if picketers and demonstrators are allowed to participate in non-peaceful demonstrations or pickets whilst armed with implements set to stimulate aggression. It is therefore no surprise when the Constitution itself limits the right to assemble, to demonstrate, to picket and to present petitions. ...
There is a positive obligation on the State to facilitate and protect a peaceful exercise of the Article 37 rights. ...
My preliminary view is that, public assemblies and demonstrations ought not to take place in private property. The place to express the opinion through marches, sit-ins or picketing must be appropriately chosen by the organizers. The time chosen for the picketing, assembly or demonstration ought to be reasonable as well. There is no doubt that statute may occasionally draw picket-lines and designate no go zones for demonstrators and picketers but generally, public streets and areas ought to be open to the public for such demonstrations or picketing and assemblies.
Boniface Mwangi v. Inspector General of Police (2017)
In their judgment in this case, the High Court held that the right to assemble "is in some respects dependent on the enjoyment of other rights and although such a right must be respected and preserved, it must be exercised in due regard to other rights." Although the importance was recognised "of having the freedom to choose a particular venue as a means to sufficiently enjoy the right to assemble", an existing law prohibiting the choice made by the petititioner was to be "respected and obeyed".
The 1950 Public Order Act (as amended) further governs public assembly in Kenya. The Act requires any person intending to convene a public assembly to give the police between three and fourteen days’ notice. The police may prevent the holding of a public assembly if the date, time, and venue proposed by the organisers are already taken by another person or group. The law does not contemplate the holding of either simultaneous or counter-demonstrations.
The Public Order Act provides that a public assembly held in violation of its provisions is an unlawful assembly. The Act makes it an offence, punishable upon conviction by a sentence of up to one year in prison, to hold or participate in an unlawful assembly.
Ferdinand Ndung’u Waititu v. Attorney General (2016)
In its judgment in the case, Justice Onguto of the High Court stated that the Public Order Act
contrary to popular views does not limit the right to demonstrate or to assemble. It instead seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order. Part III of the Public Order Act seeks to regulate public meetings and processions by providing for the need to notify the police service and also the power of the police service to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives. Under the same Part III, the Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions. In my view, it is a small price to pay to ensure that the assembly or demonstration is peaceful by involving a body enjoined to ensure security, safety and order. Both the participants as well as the non-participants are assured of protection through involvement of security officials.
Justice Onguto cautioned, however, that it was
not atypical for the protest processions or marches to turn unruly violent and riotous. However, that does not implicate the right to assemble, demonstrate and picket for the basic reason that the Constitution is supreme. The right to picket and to demonstrate which is an essential feature of any democratic society ought to be protected especially where it is shown that the marches often start as peaceful ones. The focus should not be on the fact that they turn violent but rather on how to ensure that they do not turn violent. ...
As I have already pointed out, public demonstrations and assemblies are regulated in a way by the Public Order Act. The organizers also ought to seek to achieve peaceful demonstrations. The police service has an obligation to assure the public of peace and order. The public in these respects include both the participants in the demonstrations and picketing as well as the non-participants.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Under Kenyan domestic law, Section 14(1) of the 1950 Public Order Act provides that the degree of force which may be used under the Act "shall not be greater than is reasonably necessary for that purpose". Section 14(2), though, provides that nothing in the section "shall derogate from the lawful right of any person to use force in the defence of person or property".
The use of force by the Kenyan police and other law enforcement agencies is also regulated by the 2011 National Police Service Act. Under the Sixth Schedule to the Act:
1. A police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result.
2. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Kenya's domestic regime, however, allows a firearm to be used for public order "whenever the circumstances so permit without gravely jeopardising the safety of persons and without grave risk of uncontrollable disorder". It is further specified that:
firearms shall not be used unless weapons less likely to cause death have previously been used without achieving the purpose aforesaid; and firearms and other weapons likely to cause death or serious bodily injury shall, if used, be used with all due caution and deliberation, and without recklessness or negligence.
Nonetheless, as noted above, under Section 14(2), nothing in the section "shall derogate from the lawful right of any person to use force in the defence of person or property".
Indeed, under the 2011 National Police Service Act, firearms "may only be used when less extreme means are inadequate and for the following purposes":
(a) saving or protecting the life of the officer or other person;
(b) in self-defence or in defence of other person against imminent threat of life or serious injury;
(c) protection of life and property through justifiable use of force;
(d) preventing a person charged with a felony from escaping lawful custody; and
(e) preventing a person who attempts to rescue or rescues a person charged with a felony from escaping lawful custody.
These rules are more permissive than international law allows. Firearms may not be used purely to defend property or to prevent escape, other than in the case of a proximate, grave threat to life.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Kenya has not come before the Human Rights Committee in recent years.
In its 2015 Concluding Observations on Kenya, the African Commission on Human and Peoples' Rights congratulated Kenya for Article 37 of the 2010 Constitution. However, the Commission was concerned about the lack of sufficient information in Kenya's national report concerning the protection of the right to freedom of assembly. It recommended that Kenya:
- provide more information on the right during its next Report; and
- take legislative and other measures in order to protect, and promote human rights in conformity with the UN Declaration on Human Rights Defenders, the African Charter, the Kigali Declaration and other regional and international human rights instruments that guarantee the right to freedom of association and assembly.
Ngunjiri Wambugu v. Inspector General of Police and others (2019)
In the July 2019 judgment in this case, Justice Makau of the High Court eKLRissued an order directing the Government of Kenya to
formulate and/or amend the requisite law and regulations to ensure that demonstrations are peaceful and held as per the Constitution including inter alia prescriptions for demarcation of demonstration zones, responsibilities for clean-up costs, maximum numbers, consents of persons/entities adjacent to demonstration zones with appropriate penalties when they go outside the expectations of the law.
The High Court also issued an order directing the government to
formulate a Code of Conduct for conveners of demonstrations that includes detailed explanations of how they intend to ensure non-demonstrators are not adversely affected by such demonstrations and that provide a clear line of responsibility of who is liable in case of loss to life or property, or for injury, when a member of the public is aggrieved due to such demonstration.
Neither the law and regulations nor the code of conduct have yet been developed.