ARTICLE 19 Eastern Africa calls upon the government to ensure public safety and provide appropriate security during the planned protests called by the official opposition on 20 March 2023. The protests have been called to pressure President William Ruto’s government to lower the cost of living in Kenya.
‘Protests are an important avenue for rights holders to express themselves and participate in governance processes and the state has an obligation to respect, protect and fulfill the right by establishing an enabling environment for its full enjoyment,” said Mugambi Kiai, the Regional Director for ARTICLE 19 Eastern Africa.’
ARTICLE 19 Eastern Africa is concerned that security agencies and state agencies continue to criminalise Kenyans who exercise their right to protest, subjecting them to intimidation, harassment, use of force and unlawful charges against them. We are especially worried by the recent increase in arrests of people exercising their rights to freedom of expression and to protest, particularly when they criticise the government.
On 2 March, the Nairobi chapter of The Movement for the Defence of Democracy organised a protest in response to the high cost of living in the country. Forty protesters were arrested, with police arguing they had held an illegal assembly, and that the organisers had failed to inform them of their plans to hold the march. The protesters were not charged in court, as their cases were diverted by the Office of the Director of Public Prosecution (ODPP). They were released on condition that they maintain good behaviour and refrain from participating in any unlawful assembly for the next three months, a condition which also raises concern that the agreement may be abused by police to unfairly curtail the protesters’ rights.
A day later, Shadrack Omondi Orwa, a member of the grassroots social movement Bunge la Mwananchi, which has been very vocal on matters of governance in Kenya, was charged with allegedly inciting members of the public to cause violence against the police officers and using ‘demeaning words to the presidency in a way likely to cause a breach of peace’. He was also charged with participating in an unlawful assembly after attending a Bunge La Mwananchi meeting. After the meeting, Omondi left and headed to his house, but police officers followed and arrested him.
A few days later, on 6 March, Meru University of Science and Technology was closed indefinitely and 10 students were arrested following protests demanding that the Vice Chancellor resume work after he was sent on terminal leave by the university council. The university has since been reopened after the Minister for Education reinstated the Vice Chancellor.
On 21 February, police arrested popular comedian Eric Omondi and 17 other protesters during a protest against the high cost of living. Police officers hurled teargas to disperse them and arrested Omondi and other protesters when they blocked Parliament Road in Nairobi and demanded the National Assembly Speaker address them regarding the high cost of living. According to reports, they were arraigned in court the next day and charged with participating in an unlawful assembly.
‘Cases of protesters being dispersed for not getting clearance from the police to hold gatherings and/or arrested for participation in protests point to a clear attempt by the state to silence dissenting voices and to suppress freedom of expression. It creates a culture of fear because they are wary of being arrested or police using force,’ said Mugambi.
Protests are an important way for citizens to express themselves and participate in governance processes. Article 37 of the Constitution of Kenya (CoK) expressly provides for this right. It is further provided for in the international and regional human rights frameworks that Kenya is a party to, including Article 21 and 19 of the International Covenant on Civil and Political Rights, as well as the African Charter on Human and Peoples’ Rights. There are also additional guidelines on the use of force by authorities as set out in the National Police Service Act and Service Standing Orders. These conditions demand that a police officer shall always attempt to use non-violent means first, use proportionate force, provide medical assistance and report to a senior official after employing the use of force.
However, in Kenya, the right to protest is often met with police force, resulting in violence and unjustified arrests. Authorities and political leaders also paint protests as deliberate acts of confusion, a threat to democracy and a waste of time and protesters should instead focus on working to fend for their families and contribute to building the economy.
ARTICLE 19 calls upon the government of Kenya to review the existing policy framework governing the freedom of assembly, specifically the Public Order Act and Penal Code, to ensure conformity with the constitution of Kenya, and with existing international, regional and policy frameworks that the government of Kenya should comply with to guarantee the exercise of the right to protest. The UN Human Rights Committee provided authoritative guidance on how to protect and respect this right in General Comment no 37. We also call upon the Government of Kenya to observe this guidance and comply with its international human rights obligations.
The police should stop criminalisation of the right to protest. Specifically they should:
- Respect the right of everyone to peaceful and unarmed assembly, and to demonstrate, picket, and petition as guaranteed by Article 37 of the CoK;
- Desist from arresting protesters under the guise of an unlawful assembly .
- Cease all heavy-handed tactics and stop targeting peaceful protesters and government critics.