ARTICLE 19 condemns the 12 October 2017 announcement by Kenyan Cabinet Secretary for Interior and National Coordination, Fred Matiang’I, that bannedprotests within the city boundaries of Nairobi, Mombasa, and Kisumu,in the wake of the ongoing stalemate around the presidential elections.
The government based its directive on what it termed the “escalation of lawlessness, breach of peace and public order during demonstrations organised by National Super Alliance Coalition in parts of Kisumu, Homa Bay, Migori, Siaya and Nairobi” that have sometimes led to looting and assaults on civilians. As a result, the government invoked Section 5 of the Public Order Management Act to ban NASA protests.
“The move to ban protests is unconstitutional and has a chilling effect on those seeking to exercise that right, even in other parts of the country, particularly given the brutal police response to recent protests,” said Henry Maina, Regional Director ARTICLE 19 Eastern Africa. “Peaceful protest is a form of expression and it cannot be disallowed in the country’s biggest cities in such a blanket manner” added Maina.
ARTICLE 19 calls for accountability for security agents involved in the spate of recent attacks on protesters in Kisumu, Siaya, Homa Bay, Nairobi (including the recent attack on University of Nairobi students), and other instances of attacks on those exercising their right to protest. The security forces have a history of impunity for attacks on protestors in the country. A recent report by the Kenya National Commission on Human Rights (KNCHR) entitled “Mirage at Dusk” documented 35 deaths, including an infant and 2 children, and 126 injuries, at the hands of police during post-election protests in August 2010.
According to Article 21 of the Kenyan Constitution, the state is obligated to protect and promote the rights and fundamental freedoms in the Bill of Rights including the right to peaceful assembly, by establishing an enabling environment for citizens to enjoy the right to protest. Article 24 of the Constitution of Kenya prescribes how and when fundamental rights, including the right to peaceful assembly, may be limited, by administering a three part test that requires limitations to be prescribed by law, necessary and proportionate; and to pursue a legitimate aim. These rights and permissible restrictions are also part of Kenya’s obligations under international law, through Articles 21 and 4 of the ICCPR.
ARTICLE 19 notes that the blanket ban on opposition protests in certain areas of Nairobi, Mombasa and Kisumu fails the above test on necessity and proportionality. The government and the police should explore other strategies to ensure law and order, and protection of life and property.
ARTICLE 19 calls upon the Kenyan government to immediately lift this ban, and take positive steps to end the excessive use of force by police against protesters. We also urge the Inspector General of the Police together with the Independent Police Oversight Authority (IPOA) to bring to book all officers involved in the killing and brutalizing of protesters.
We also call on the government to review the Public Order Management Act No.26 of 1950 with a view to aligning it to the Constitution of Kenya 2010 and international standards on freedom of expression and peaceful assembly.