Criminalization of Peaceful Protests: a Leeway for Police Brutality

By Treezer Michelle Atieno

The criminalization of protest in Kenya has drawn international criticism from human rights organizations and foreign governments. They have called on the Kenyan government to respect and protect the right to freedom of assembly and expression as enshrined in the constitution.

These organizations argue that peaceful protests play a crucial role in democratic societies by allowing citizens to voice their concerns, hold the government accountable, and advocate for social change.

“It is not going to be business as usual, and we are not going to allow people to use certain provisions of the constitution to cause mayhem and anarchy. We will mobilize every resource available to protect the interests and lives of every Kenyan.” said president William Ruto in his speech on 15th July where he described the ongoing protests as lawlessness.

On 12th July, the Police Inspector General Japhet Koome, through a press statement, banned peaceful protests describing them as illegal and saying the police will use any means possible to disperse protesters.

Article 19 of the constitution of Kenya does not permit the police or any other government official to outlaw protests. Rather, these entities are mandated to respect and protect the right to peaceful protests as documented in Article 37.

According to Human Rights Watch (HRW), the violent threats from government officials have contributed greatly to police killings of peaceful protesters and other human rights violations since March 2023.

Apart from remarks and press statements by government officials on criminalizing peaceful protests, there are also instances that the government has tried to use the constitution for this purpose.

One notable example is the Public Order Act (POA), which has been criticized for its potential to infringe upon the right to protest. The POA requires organizers of public gatherings to notify the police at least three days in advance and obtain permission from the authorities.

Failure to comply with these requirements can result in criminal charges. Critics argue that this law gives excessive power to the police and allows them to arbitrarily deny permission for protests.

Another piece of legislation that has raised concerns is the Security Laws (Amendment) Act of 2014. This law grants security agencies broad powers to combat terrorism but also includes provisions that could be used to suppress peaceful protests. For instance, it criminalizes “hate speech” without clearly defining what constitutes hate speech, leaving room for abuse and selective enforcement.

The Human Rights Watch document that various acts of illegalizing peaceful protest in the country have resulted in the excessive use of force on protesters by the police. These include the use of live bullets against protesters, possibly killing scores of people and injuring hundreds.

Amnesty International Kenya have documented at least 30 cases of police killings of protesters since March 2023. 12 killings in March 20th and 27th protests, 12 killings during the Saba Saba protests and 6 killings on Wednesday July 19th. The deaths have been attributed to suffocation from teargas and lethal shootings. The Human Rights Commission has also reported the arrest of over 300 people during the protests on Wednesday 19th July, 2023.

Until now, no Investigation has been launched on the factors surrounding the brutal killings and injuries inflicted on peaceful protesters since March. No police officer has been arrested or held accountable for these crimes against humanity.

Unconstitutional arrests have also become very rampant in the country. “Arrests must be carried out legally and not as a tool to punish or intimidate people. All those arrested have the right to know the charges being referred, legal representation, medical assistance and bail or bond within 24 hours.” reads part of the statement released by Amnesty International Kenya on 20th July.

The government should take the necessary steps to investigate and prosecute officers implicated in police abuses during protests since March. The rights to life and peaceful protests should not be ignored by allowing the police to kill protesters and walk free. The Kenyan government has a responsibility to ensure fair and equal treatment and to hold to account anyone who violates the law.

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