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Introduction:
In 2015, ARTICLE 19 documented 140 protests, sparked by a wide range of issues including lack of adequate security, corruption, land-grabbing, unemployment, political reform, and poor road conditions. Of the 140 protests, 36 were violent.
Article 37 of Kenya’s Constitution guarantees citizens the right to assemble, demonstrate, picket, and present petitions to public authorities, peaceably and unarmed. While freedom of assembly and association is not an absolute right, it cannot “be limited except by law, and then only to the extent that the limitation is reasonable, justifiable in an open society” (Article 24, Kenya Constitution). Any limitation must be subject to a three part test; a limitation will only be acceptable when ‘prescribed by law; when is necessary and proportionate; and when the limitation pursues a legitimate aim’ namely: the interests of national security or public safety; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others. This test has not been observed by police and authorities: the right to protest has been unduly restricted and violated throughout 2015.
Police used excessive force, including the firing of live bullets and firing tear gas into crowds in order to disperse demonstrators. Four people died in the protests, with numerous seriously injured, as well as two police officers. Numerous protesters were also arrested, some being charged with illegal participation in protests. These included human rights defenders, civil society activists, journalists, and ordinary citizens, including school children.
ARTICLE 19 believes that freedom of expression, peaceful assembly and association are interrelated and interdependent rights, guaranteed under the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (CESCR) and African Charter on Human and Peoples Rights (Africa Charter). The African Commission on Human and Peoples’ Rights has also established a close relationship between the rights to freedom of expression, freedom of association and freedom of assembly, and has stated that the violation of the freedom of association and assembly carries an implicit violation of freedom of expression.
Worldwide, protests have often inspired positive social change and advanced human rights and they continue to help define and protect civic space. Public protests as a form of expression continue to encourage the development of an engaged and informed citizenry for a strong democracy. Effective realisation of freedom of assembly and freedom of expression therefore strengthens democracy by enabling citizens’ direct participation in public affairs. Freedom of expression, and freedom of assembly and association provide individuals and groups with space and platform to dissent and express grievances, to share views and opinions, to expose flaws in governance and to publicly demand accountability from the authorities.
International human rights instruments do not define any “right to protest.” It has been widely acknowledged, however, that instead of a distinct “right,” engaging in a protest encompasses the exercise of a variety of interlinked and interdependent human rights, in particular:
• the right to freedom of expression;
• the right to freedom of peaceful assembly and association; and
• the right to participate in the conduct of political affairs.
In might also involve the right to strike (in context of labour relations); and the right to culture. Additionally, engaging in protest involves the respect and protection of other rights, such as the rights to life, privacy, liberty and security of a person, or freedom from discrimination.
States including Kenya, who are party to the UDHR, ICCPR and African Charter on Human and Peoples’ Rights have clear legal obligations to promote and protect these rights and, therefore, the right to protest. Even if participants in an assembly are not peaceful and as a result forfeit their right to peaceful assembly, they retain all the other rights, such as the right to life and the right to be free from cruel, inhuman or degrading treatment subject to the normal limitations. No assembly should thus be considered unprotected.
This report documents attacks on freedom of assembly and association in Kenya, with the aim that data and information will encourage stakeholders, and the government, to take steps to ensure that rights are upheld and protected, and that policing of protests in Kenya will become guided by the human rights principles of legality, necessity, proportionality and non- discrimination. In particular, police should comply at all times with international human rights law and standards on policing, in particular the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Lastly, Civil Society in particular needs to demand for accountability against the violators of human rights in the context of protests.
Deaths
In 2015, four people were killed and hundreds injured, including police officers and school children.
On 26 January in Narok, Sikona Muntet died after being shot by Narok County Rangers during a protest over Governor Samuel ole Tunai’s alleged mismanagement of County government revenue. At the same protest, another protestor lost his life after he was trampled, after police released tear gas to dispersedemonstrators.
On the same day, in Kinangop, Nyandarua Country, there was one death and several injuries after farmers took to the streets over the Kshs 13 billion wind power project.
On 23 March in Malindi, a woman only identified as ‘Mama Zambia’ died, having been shot in the head, at a protest by traders over a 100 per cent increase in the daily market rates payable to the County government.
Met with Violence
Protests in 2015 were repeatedly met with violence: police even used lethal force under the provisions of “Public Order Act” a law which has remained on Kenya’s statute books since 1950s to disperse protesters.
On 19 January, police fired tear gas at 100 pupils of Langata Road Primary and a number of activists, who were protesting the seizure of the school playground by a private developer. More than 40 armed police, accompanied by dogs, dispersed the protesters by firing tear gas canisters at a crowd of school children: the unlawful use of violence to disperse protesters sparked public outrage.
Despite the use of force by police to disperse protesters, the protest at Langata Primary school sparked spontaneous demonstrations against grabbing of school land in several parts of the country, and the government subsequently pledged and started taking steps to ensure all schools have title deeds to their land.
Arrests
Numerous protesters were arbitrary arrested, detained and later released, some without charges, during 2015. Arresting and charging peaceful protestors violates the fundamental human rights to freedom of assembly and freedom of expression, outlined in Article 37 of the Kenyan constitution. Furthermore, such action intimidates and deters protestors, creating a ‘chilling effect’ on the right to protest.
On 14 May, 17 protesters who took part in the ‘Occupy Parliament’ protests against the raising of salaries of Members of Parliament were charged with taking part in a riot and breach of peace. The protesters were released on cash bail of KSH20,000 each, or surety of KSH10,000.
On 23 September, 11 university students from University of Nairobi and Technical University of Kenya were charged with unlawful assembly following a demonstration. The students pleaded not guilty, and were released on a KSH50,000 bonds with a surety of a similar amount or a cash bail of Sh20,000. Defence lawyer Daniel Bosire said the charges against the students were unfair: the students had already informed police that they would hold the demonstrations.
The right to protest is limited in various ways in Kenya: for example, organisers must notify local police in advance of public meetings, which may proceed unless police notify organizers that the meeting is prohibited. Authorities may prohibit gatherings only if there are simultaneous meetings previously scheduled for the same venue, or if there is a perceived, specific security threat.
However, in 2015 police routinely denied requests for meetings filed by human rights activists and dispersed assemblies for which no prohibition had been issued.
Impunity
In 2015, ARTICLE 19 recorded only 5 people being charged with killing and assaulting protestors, suggesting a high level of impunity regarding attacks on right to protest.
On 2 September, three people were charged with shooting and killing a protester during an incident in January. Senior Sergeant Julius Taporu Dikir, of the Narok County Rangers, was charged with the killing of Sikona ole Muntet after he allegedly opened fire on a crowd of demonstrators attempting to present a petition to Narok Governor Samuel Tunai. Warden II Moses Kuiyoni and Sergeant Samwel Kishoyian were charged with unlawful wounding of individuals.
In Trans Nzoia, Leonard Makona and Eliud Nabiimba, who attacked journalists during protests in June, were brought before the court and charged. Makona is also accused of damaging a video camera worth KSH300,000, belonging to Leonard Wamalwa. He denied the charges and was released on a KSH100,000 bond.
A large number of police officers involved in violently dispersing protesters are yet to be held to account.
Legal framework
Article 37 of Kenyan Constitution guarantees every person the right “peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” Further Article 33, provides that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
Freedom of Assembly is protected by International and legal frameworks that Kenya is a signatory. Article 2 (5) and (6) of the Kenya Constitution provide that general rules of international law, treaties and conventions ratified by Kenya shall form part of law of Kenya. Article 20 of the Universal Declaration of Human Rights states that everyone has the right to freedom of peaceful assembly and association. This is echoed in Article 11 of the African Charter on Human and People’s Rights which states: “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 the law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.” During the 56th Ordinary Session of the ACHPR, the Commission launched the Report of the Study Group on Freedom of Association and Assembly in Africa, which among others things, recommends drafting and disseminating guidelines on the freedom of association and assembly.
Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which Kenya acceded to on 1 May 1972, also protects right to peaceful assembly and stipulates that any restriction on this right must be in conformity with the law and necessary in a democratic society. Kenya has however not made any concrete commitments to uphold freedom of assembly and association in compliance with the ICCPR.
Almost 6 years after the proclamation of Kenya’s constitutional Bill of Rights, many human rights defenders are still facing threats to their lives and freedom while exercising right to freedom of assembly.
In addition, the Government of Kenya has regrettably failed to provide substantial responses to the questions raised by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association in his communications since the establishment of the mandate in 2011. This is in violation of Human Rights Council resolutions 24/5 (2013), 21/16 (2012) and 15/21 (2010) that call upon States to cooperate fully with him and assist him in the performance of his mandate and to respond promptly to his communications.
Conclusions
The use of lethal force during protests continues to be a major concern in Kenya.
The incidents recorded in this report suggest that the Kenyan government is quick to classify a protest as “unlawful” even when the vast majority of individuals remain nonviolent and compliant with the laws. These classifications are used to justify a wide range of repressive state measures, including use of lethal force. The right to peaceful assembly must be interpreted in a way that ensures that individuals who are exercising their fundamental peaceful assembly rights continue to receive protection, even when other individuals within a crowd commit acts of violence.
Moreover, while the right to peaceful assembly is necessarily limited to nonviolent gatherings, all other human rights protections remain directly applicable to all forms of protest, whether or not they are classified as violent. Limitations on use of force, for example, are particularly important and apply to all police actions. Too often, a universal “gloves off” approach is taken when a few members of the crowd engage in criminal behavior.
Recommendations
The Kenyan Government should:
- Put in place an enabling environment for associations to operate safely and for protests to take place free from undue restrictions.
- Ensure that authorities prepare and plan for assemblies with a view to ensuring the best possible conditions for the exercise of the right of peaceful assembly, and with a view to preventing and avoiding situations where they might need to resort to the use of force
- Actively protect protesters, alongside others, from any form of threat or violence from those who wish to prevent, disrupt or obstruct protests.