Gov’t urges responsible exercise of constitutional rights, warns against violence

Interior Principal Secretary Dr. Raymond Omollo has issued a stern warning regarding violence during public demonstrations in Kenya, emphasizing that such acts undermine national unity, livelihoods, and development gains. The government's stance underscores the critical balance between the constitutional right to assemble, demonstrate, picket, and petition, and the imperative to maintain public order and safety. This article explores the legal framework governing these rights in Kenya, highlighting the limitations imposed by law and judicial interpretation, and the potential liabilities for individuals and organizers involved in violent protests.

The recent pronouncements by Interior Principal Secretary Dr. Raymond Omollo, urging responsible exercise of constitutional rights and cautioning against violence during demonstrations, bring into sharp focus the perennial tension between fundamental freedoms and public order in Kenya. Dr. Omollo's statement, made as the anniversary of significant youth-led demonstrations approaches, serves as a timely reminder that while the Constitution guarantees the right to protest, this right is not absolute and must be exercised within the confines of the law.

His warning highlights the government's concern over the destructive potential of violent protests, which have historically led to loss of life, injury, and significant damage to property and infrastructure. The PS explicitly condemned criminal behaviour such as burning businesses, looting, and attacking citizens, stating that such acts cannot be disguised as legitimate exercise of constitutional rights. For legal practitioners, this reiterates the necessity of understanding the precise boundaries of these rights and the severe consequences that can arise from their abuse, both for individuals and for the broader socio-economic fabric of the nation.

The right to assembly, demonstration, picketing, and petitioning public authorities is a cornerstone of Kenya's democratic dispensation, firmly enshrined in Article 37 of the Constitution of Kenya, 2010. This Article explicitly grants every person the right to exercise these freedoms "peaceably and unarmed." However, this fundamental right, like most others, is not absolute. Article 24 of the Constitution provides a general limitation clause, stipulating that a right or fundamental freedom may only be limited by law, to the extent that the limitation is reasonable and justifiable in an open and democratic society. Key factors for consideration include the nature of the right, the importance of the limitation's purpose, and the need to ensure that the enjoyment of rights by one individual does not prejudice the rights and freedoms of others.

Further regulating the exercise of these rights is the Public Order Act (Cap 56), which mandates that any person intending to convene a public meeting or procession must notify the regulating officer (typically the Officer Commanding Station) at least three but not more than fourteen days before the proposed date. The Act grants police powers to prevent or disperse public assemblies if there is a clear, present, or imminent danger of a breach of peace or public order, or if the notification requirements are not met. Unlawful assemblies, as defined by the Act, can lead to imprisonment for up to one year. The National Police Service Act (No. 11A of 2011) further outlines the duties of the police, which include maintaining law and order, preserving peace, and protecting life and property, thereby providing the statutory basis for police intervention in cases of public disorder.

The government's warning underscores a critical legal distinction: the constitutional protection for demonstrations extends only to those conducted "peaceably and unarmed." Judicial interpretations have consistently affirmed that acts of violence, destruction of property, or intimidation fall outside the ambit of this protection. For instance, in *Ferdinand Ndung'u Waititu v. Attorney General (2016)*, the High Court noted that assemblies, picketing, and demonstrations that are not peaceful are excluded from constitutional protection and ought to be stopped if they involve violence or intimidation. Similarly, in *Ngunjiri Wambugu v Inspector General of Police and others (2019)*, the High Court emphasized that the right to demonstrate is conditional on protestors conducting themselves peaceably and unarmed, and that police are duty-bound to intervene if protestors are armed, even with stones.

The legal implications of engaging in violent demonstrations are severe. Individuals participating in acts of arson, looting, assault, or destruction of property can face criminal charges under the Penal Code and other relevant statutes, distinct from the exercise of their constitutional rights. Beyond individual criminal liability, there is an evolving jurisprudence regarding the accountability of demonstration organizers. The *Ngunjiri Wambugu* case, for example, saw the High Court direct the state to formulate laws and regulations that could potentially hold organizers liable for damage and injuries occurring during protests, a concept also explored in proposed amendments to the Public Order Act.

Conversely, the National Police Service also bears significant responsibilities. The National Police Service Standing Orders, alongside constitutional provisions, mandate police officers to conduct themselves in a manner that respects human rights and facilitates peaceful assemblies. The use of force must be lawful, necessary, and proportionate, with a clear distinction made between violent criminals and peaceful protestors. Recent judicial pronouncements, such as the High Court's decision in *Katiba Institute's Judicial Review application against Japhet Koome Nchebere*, have affirmed the doctrine of command responsibility, holding the Inspector General of Police personally liable for the unlawful actions of officers under their command who violently disperse peaceful protests. This highlights the dual responsibility within the legal framework: citizens must exercise their rights responsibly, and law enforcement must uphold the law in managing public order.

For legal practitioners, the government's unequivocal warning serves as a crucial reminder of the legal boundaries surrounding the exercise of the right to assembly and demonstration in Kenya. Attorneys advising individuals or organizations planning protests must conduct thorough due diligence, ensuring strict adherence to notification requirements under the Public Order Act and emphasizing the non-negotiable principle of peaceful and unarmed conduct. The potential for both criminal and civil liability for violent acts, including property damage and personal injury, necessitates clear communication to participants about these risks.

Looking ahead, the ongoing legislative debates, such as those surrounding proposed amendments to the Public Order Act, signal a potential for stricter regulations, particularly concerning organizer liability and designated protest zones. Practitioners should closely monitor these developments and evolving judicial interpretations to provide up-to-date advice. The call for responsible citizenship and respect for the rule of law from the government, coupled with judicial emphasis on police accountability, underscores the complex legal landscape that demands careful navigation by all stakeholders to safeguard both constitutional freedoms and national stability.