Ruto orders action against goons and their sponsors

President William Ruto's recent directive to security agencies to take firm action against individuals using protests to cause violence, and crucially, against their sponsors, signals a heightened focus on public order in Kenya. This pronouncement underscores the delicate balance between the constitutionally guaranteed right to protest and the imperative to maintain peace and security. The directive necessitates a rigorous application of existing legal frameworks, including the Constitution, the Public Order Act, the Penal Code, and the Prevention of Organized Crimes Act, to address unlawful assemblies, incitement to violence, malicious damage to property, and the financing of criminal activities. Legal professionals must be cognizant of the expanded scope of accountability, which now explicitly targets those who orchestrate and fund such disruptions, posing significant implications for both individual liberties and national stability.

President William Ruto recently issued a stern directive, instructing Interior Cabinet Secretary Kipchumba Murkomen and other security agencies to decisively address criminal groups that exploit protests to instigate violence and destruction. This pronouncement, made amidst ongoing national conversations regarding public demonstrations and the use of force by security agencies, emphasizes the government's commitment to upholding law and order while ostensibly protecting the right to peaceful assembly. President Ruto explicitly warned that violence, destruction, and the involvement of armed groups would not be tolerated, drawing a clear distinction between legitimate protest and criminal acts.

The President's directive is particularly significant as it extends accountability beyond the immediate perpetrators, or 'goons,' to include their 'sponsors' and financiers. This signals a strategic shift towards dismantling the organizational and financial networks that facilitate protest-related violence. For legal practitioners, this raises critical questions about the application of existing criminal statutes, the evidentiary thresholds for prosecuting instigators and financiers, and the potential impact on the exercise of fundamental rights in Kenya. This article will delve into the legal framework governing protests and public order in Kenya, analyzing the implications of President Ruto's directive for both individual and corporate accountability.

The right to protest in Kenya is enshrined in Article 37 of the Constitution of Kenya, 2010, which guarantees every person the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. However, this right is not absolute and is subject to limitations prescribed by law, provided such limitations are reasonable and justifiable in an open and democratic society, as outlined in Article 24 of the Constitution. The requirement for protests to be 'peaceable and unarmed' is a fundamental constitutional caveat, meaning assemblies that involve violence or intimidation fall outside the protection of Article 37.

Several statutes complement and regulate this constitutional right. The Public Order Act (Cap 56) is a primary legislative instrument that governs public gatherings and processions. It mandates that organizers notify the regulating officer (police) of their intent to convene a public meeting or procession at least three days prior, but not more than fourteen days before the proposed date. Failure to provide such notification, or holding a meeting contrary to the Act's provisions, can render an assembly unlawful, making participants liable to imprisonment for up to one year. The Penal Code (Cap 63) further criminalizes various acts associated with violent protests, including unlawful assembly (Section 78), riot (Sections 79, 80), malicious damage to property (Sections 85, 86), and incitement to violence and disobedience of the law (Section 96). Notably, Section 95(1B) of the Penal Code, which criminalized 'creating a disturbance likely to cause a breach of peace,' was recently declared unconstitutional by the High Court for being vague and susceptible to misuse. Additionally, the National Police Service Act, 2011, provides the framework for police conduct during protests, emphasizing the use of non-violent means first and proportional force only when necessary.

President Ruto's directive to pursue both 'goons' and their 'sponsors' necessitates a multi-faceted legal approach, drawing upon various criminal statutes. For the direct perpetrators of violence and destruction, the Penal Code offers a range of offences. Individuals engaging in violent acts during protests can be charged with riot, which carries a penalty of imprisonment, or even rioting after proclamation, a felony punishable by life imprisonment if dispersal orders are defied. Acts of arson, looting, and vandalism fall under malicious damage to property, with penalties varying based on the value of the damage. Assault, affray (fighting in a public place), and offensive conduct conducive to breaches of the peace are also applicable.

The more complex aspect of the President's directive lies in prosecuting the 'sponsors.' This requires establishing a direct link between those who finance or organize and the criminal acts committed on the ground. The Prevention of Organized Crimes Act, No. 6 of 2010, becomes highly relevant here. This Act defines an 'organized criminal group' as a structured group of three or more persons existing for a period and acting in concert to commit serious crimes. It creates offences for those who lead, support, or fund-raise for such groups, with penalties ranging from fines of up to KSh 5 million to imprisonment for up to 15 years, and even life imprisonment in certain circumstances, particularly if a person dies during the organized criminal activity. This statute provides a robust legal basis for targeting individuals who provide financial or logistical support to groups engaged in protest-related violence.

Furthermore, the concept of incitement is crucial. Section 96 of the Penal Code criminalizes uttering, printing, or publishing words, or doing any act calculated to bring death or physical injury, lead to property damage, or prevent the enforcement of law by unlawful means. The National Cohesion and Integration Act, No. 12 of 2008, also addresses hate speech and incitement to violence, particularly on ethnic grounds, with penalties including fines and imprisonment. Proving incitement, especially against high-profile individuals, often presents evidentiary challenges, requiring clear causation between the words or actions of the alleged sponsor and the subsequent violent acts. The Director of Public Prosecutions (DPP) and the National Police Service (NPS) face the burden of meticulously gathering evidence to establish such links, moving beyond mere political rhetoric to demonstrable criminal culpability. Recent judicial pronouncements have also underscored the individual liability of police commanders for unlawful actions by officers under their command, reinforcing the principle of accountability across the board.

While the constitutional right to protest is fundamental, the courts, as seen in cases like *Ferdinand Ndung'u Waititu v. Attorney General*, have consistently affirmed that this right is not absolute and can be limited by law. The challenge for law enforcement and the judiciary will be to apply these laws judiciously, ensuring that legitimate expressions of dissent are protected, while criminal elements and their backers are held accountable without stifling civic space. The Law Society of Kenya (LSK) has also echoed calls for accountability against sponsors, accessories, and principals of 'goonism,' highlighting the broader legal community's concern.

President Ruto's directive marks a significant policy stance aimed at curbing violence during protests by targeting not only the direct perpetrators but also their financial and organizational backers. This approach leverages a comprehensive legal framework, including constitutional provisions, the Public Order Act, the Penal Code, and particularly the Prevention of Organized Crimes Act, to ensure accountability. For legal practitioners, this means a heightened need to understand the nuances of these statutes, especially concerning accomplice liability, incitement, and the financing of criminal enterprises.

Practitioners advising clients involved in organizing or participating in protests must emphasize the strict adherence to the 'peaceable and unarmed' conditions of Article 37 of the Constitution and the notification requirements of the Public Order Act to avoid criminal liability. Conversely, those representing individuals accused of protest-related violence or sponsorship will need to prepare for robust prosecutions, where the burden of proof for establishing links between sponsors and specific criminal acts will be a critical battleground. The effectiveness of this directive will hinge on the National Police Service's capacity for impartial investigation and the Director of Public Prosecutions' ability to secure convictions, all while upholding due process and safeguarding legitimate democratic freedoms. The legal community will be closely watching how these directives are implemented, ensuring that the pursuit of public order does not inadvertently infringe upon fundamental human rights.