CIVICUS discusses a new bill restricting protests in Kenya with Catherine Mbui, Lead Programme Officer for Eastern Africa at Article 19, an organisation that promotes and defends freedom of expression and access to information around the world.

In response to recent protests against tax increases and bad governance, the Kenyan National Assembly is debating a new Assembly and Demonstration Bill that could unduly restrict the right to peaceful assembly, protected under article 37 of the constitution. Key concerns include a ban on face coverings at protests, which would violate the rights to privacy and expression, liability clauses that would discourage lawful protests and authorisation clauses that would give the authorities excessive discretion to ban protests on vaguely defined grounds of affecting the rights of others. If passed, the bill is likely to face numerous legal challenges.

Why is the government trying to pass a new law to regulate protests?

The Assembly and Demonstration Bill, currently being debated in parliament, came at a time of widespread frustration, with people unhappy that the government was prioritising the demands of international financial institutions over domestic needs, and angry at the lack of transparency in the use of borrowed funds, persistent corruption and high youth unemployment. This led to intense nationwide protests.

In response to these protests, parliamentarians proposed a bill to amend Kenya’s 1950 Public Order Act. It was introduced on 25 April and tabled in the National Assembly on 15 May. While its stated aim is to regulate protests, this bill fails to modernise outdated provisions of the Public Order Act to reflect social and technological changes, and could instead give the state excessive powers to restrict freedoms of assembly and expression.

The bill goes far beyond the restrictions on rights, particularly the right to assembly, allowed under the constitution. Instead of protecting this fundamental right, it introduces administrative hurdles and broad criminal provisions to deter people from exercising their right to protest. For instance, it retains concepts such as ‘public order’ and ‘national security’, which could be abused by law enforcement agencies. This is likely to further deepen the widespread sense of injustice and discontent.

What are the main concerns with the bill in its current form?

The main concerns revolve around the punitive, reactive and retrogressive nature of the bill, which could undermine the right to peaceful assembly, protest and petition as guaranteed by article 37 of the constitution.

A controversial requirement introduced by the new bill is the creation of a public register of protest notifications, which would be open for inspection during working hours. This could pose logistical problems depending on the efficiency and resources of local police stations. While the bill recognises that protests can be spontaneous, which is a step forward from current laws that criminalise these, it doesn’t take into account that protests are often organised within hours, making it difficult to comply with the notification requirements.

The new bill allows police to impose harsh conditions on protesters in the name of public safety, public order or protecting the rights of others. These conditions could include fees to cover clean-up costs or address environmental or cultural concerns. If organisers want to challenge these conditions, they will have to go to the High Court, which is a lengthy and expensive process.

To ensure that people who don’t take part in protests can go about their lives and businesses without disruption, the new rules make protest organisers and participants liable for property damage. While it is reasonable to hold people responsible for their actions, it seems unfair to extend this to organisers who can’t control the behaviour of every participant.

The bill also restricts common forms of protest such as holding placards, singing and chanting. These actions are central to making protests visible and loud, which is the whole point of protests. This is clearly an unconstitutional restriction on freedom of expression. The bill also bans protesters from covering their faces, which is usually a way of protecting their identity from police reprisals or protecting themselves from teargas.

How has Kenya historically dealt with protests?

The government’s response to protests has often involved the use of excessive force, resulting in deaths and serious injuries due to police misconduct. For many years, civil society in Kenya has been advocating for a Public Order Act that respects human rights and freedoms as enshrined in the 2010 constitution.

This use of force hasn’t been limited to political protests; it’s also been used against young people in educational institutions protesting for their socio-economic rights. Tragically, children and students have been the victims of police brutality. Even the current president, who once experienced police brutality as a protester, ordered the military to manage protests earlier this year.

The mishandling of protests by the police should be recognised as a historic injustice that could escalate into a national disaster. We clearly need to amend the outdated Public Order Act 1950 to strike a balance between law enforcement and the protection of rights. To achieve these goals, the current bill needs to be completely overhauled.

What are the next steps in the process?

After two official readings in parliament, the public must be invited to make oral submissions to contribute to the process. On 20 August, the National Assembly issued a notice inviting the public to submit memoranda on proposed laws, including this one. The deadline for submissions was 9 September, and civil society worked hard to raise awareness about the use of force against protests and encourage the public to submit their comments on the bill.

The Kenyan government must address the root causes of protest violence, such as policing methods, the types of weapons used and the independence and neutrality of the police, particularly during political demonstrations. We need a fair balance of rights and responsibilities between protesters, the police and the authorities. Effective management of public order is key to focusing attention on the real issues causing unrest, rather than allowing violence and unfair policing to overshadow these important issues.

If the bill still goes ahead in its current form, the law allows for strategic and public interest litigation to have it declared unconstitutional.