Murkomen vows firm action against criminality in planned protests

Interior and National Administration Cabinet Secretary Kipchumba Murkomen's recent warning against criminality in planned protests highlights the delicate balance between the constitutional right to assembly and the state's mandate to maintain public order in Kenya. This article examines the legal framework governing public demonstrations, focusing on Article 37 of the Constitution, the Public Order Act (Cap 56), and relevant provisions of the Penal Code (Cap 63). It delves into the scope and limitations of the right to protest, the potential criminal liabilities for participants and organizers, and the evolving jurisprudence on police conduct during demonstrations. Practitioners must advise clients on the stringent requirements for lawful assembly and the severe consequences of engaging in violent or destructive acts, while also being aware of the constitutional protections against arbitrary state action.

Kenya's political landscape is frequently marked by public demonstrations, serving as a critical avenue for citizens to express grievances and demand accountability. The recent stern warning from Interior and National Administration Cabinet Secretary Kipchumba Murkomen, indicating firm action against individuals exploiting planned June 25 demonstrations for violence, looting, and destruction, underscores the perennial tension between the exercise of constitutional rights and the maintenance of public order. Murkomen's statement, accusing unnamed political actors of sponsoring unrest, signals a heightened state vigilance and a commitment to enforce the law rigorously against any perceived criminal elements within protests.

This development necessitates a comprehensive understanding for legal professionals of the intricate legal framework governing public assemblies in Kenya. While the Constitution guarantees the right to protest, this right is not absolute and is subject to limitations prescribed by law. The state's response to demonstrations, particularly those that devolve into violence, raises significant questions about the boundaries of free assembly, individual and organizational liability, and the appropriate use of force by law enforcement. This article aims to dissect these legal complexities, providing guidance to practitioners navigating the rights and responsibilities associated with public protests in Kenya.

The right to assembly, demonstration, picketing, and presenting petitions to public authorities is a fundamental freedom enshrined in Article 37 of the Constitution of Kenya, 2010. This right, however, is explicitly qualified: it must be exercised "peaceably and unarmed." The Constitution further provides, under Article 24, that rights and fundamental freedoms may be limited by law, but only to the extent that the limitation is reasonable and justifiable in an open and democratic society, taking into account factors such as national security, public safety, public order, and the protection of the rights and freedoms of others.

Complementing the constitutional provisions is the Public Order Act (Cap 56), which serves as the primary statute regulating public gatherings. The Act mandates that any person intending to convene a public meeting or procession must notify the regulating officer (police) at least three days but not more than fourteen days before the proposed date. Failure to comply with this notification requirement renders an assembly unlawful. The Public Order Act also contains provisions related to curfews and the prohibition of offensive weapons at public meetings. Additionally, the Penal Code (Cap 63) outlines various criminal offenses that can arise from unlawful or violent assemblies, including unlawful assembly, riot, malicious damage to property, and incitement to violence, providing the statutory basis for prosecuting individuals who transgress during protests.

The constitutional right to peaceful assembly under Article 37 is not unfettered. The explicit requirement that demonstrations be conducted "peaceably and unarmed" sets a clear boundary. Any assembly that deviates from this principle, by engaging in violence, intimidation, or carrying weapons, falls outside the protection of Article 37 and becomes subject to legal intervention. The Public Order Act reinforces this by deeming assemblies held without proper notification as unlawful. Participation in an unlawful assembly is a misdemeanour, punishable by imprisonment for up to one year under Section 79 of the Penal Code. If an unlawful assembly escalates to a breach of peace and causes terror to the public, it becomes a riot, with participants also facing criminal liability under Section 80 of the Penal Code.

Beyond participation in unlawful assemblies or riots, individuals engaging in destructive acts during protests face severe penalties under the Penal Code. Malicious damage to property, as stipulated in Section 339, is a serious offense, with penalties varying based on the nature and extent of the damage, potentially leading to life imprisonment if the destruction endangers life. Other specific offenses include rioters demolishing buildings (Section 85), injuring buildings or machinery (Section 86), or interfering with transport infrastructure (Section 87). Organizers of protests also bear significant responsibility, as the Public Order Act holds them criminally liable for unlawful assemblies their group participates in, even if not physically present. There have also been proposals to amend the Public Order Act to impose civil and criminal liability on organizers for grievous harm, property damage, or loss of earnings resulting from protests.

An important development in this area concerns the offense of incitement to violence. While Section 96 of the Penal Code addresses incitement to violence and disobedience of the law, the High Court in 2020 declared Section 96(a) unconstitutional. The court found that this provision impermissibly shifted the legal and evidential burden of proof from the prosecution to the accused, thereby infringing on the constitutional presumption of innocence. This ruling has significant implications for how incitement charges can be pursued in the context of protests, requiring the prosecution to establish guilt beyond a reasonable doubt without relying on a statutory presumption. However, other forms of incitement or conspiracy to commit offenses remain actionable.

The role of the National Police Service during protests is dual: to facilitate peaceful assemblies and to maintain public order and safety. The police are obligated to distinguish between peaceful protesters and violent individuals, and their use of force must be lawful, necessary, and proportionate. Recent court orders have also sought to restrict the use of excessive force, such as water cannons, tear gas, and live ammunition, against peaceful demonstrators. Commanders and senior officers can be held individually liable for unlawful actions by officers under their command. This jurisprudence underscores the need for law enforcement to adhere strictly to human rights standards and constitutional principles even when confronting criminality within protests.

The Cabinet Secretary's warning serves as a timely reminder to legal practitioners and the public alike that while the right to protest is constitutionally protected in Kenya, it is not absolute. Clients intending to participate in or organize demonstrations must be thoroughly advised on the strictures of the Public Order Act, particularly the notification requirements, and the imperative to remain peaceful and unarmed. Failure to adhere to these conditions can transform a lawful exercise of rights into a criminal offense, attracting severe penalties under the Penal Code for unlawful assembly, riot, malicious damage, or other related offenses.

Practitioners should emphasize the potential for individual and organizational liability, especially concerning property damage and incitement. While the High Court's ruling on Section 96(a) of the Penal Code offers some protection regarding the burden of proof for incitement, other criminal provisions remain robust. Furthermore, legal professionals must monitor police conduct to ensure adherence to constitutional standards and court directives regarding the use of force, providing recourse for clients whose rights may be violated. The evolving legal landscape demands vigilance and proactive legal counsel to navigate the complex interplay between civic expression and state authority in Kenya.