Protesters face tough penalties in proposed law

Conveners of demonstrations and assemblies will be held legally liable for damage to property, if Parliament passes a proposed law.

The Assembly and Demonstration Bill, 2024, sponsored by Mbeere North MP Geoffrey Kiringa Ruku, addresses the conduct of an assembly or demonstration and imposes liability for damage on an organisation or person who convenes or takes part in an assembly or demonstration.

“Where, during the carrying on of an assembly or demonstration, damage to property occurs as a result of the assembly or demonstration, every organisation and every person participating in such assembly demonstration shall … be jointly and severally liable for such damage,” the bill states.

The bill defines ‘riot damage’ as a loss suffered as a result of an injury to or death of a person, or damage to or destruction of property caused directly or indirectly by, and immediately before, during or after, the holding of a gathering.

No face disguises

If the bill becomes law, a person who violates these provisions commits an offence and will, on conviction, be liable to a fine not exceeding Sh100,000 or to imprisonment for a period not exceeding one year, or to both.

During such demonstrations or assemblies, people shall not by way of a banner, placard, speech or singing or in any other manner incite hatred of other persons or any group of persons on account of differences in culture, race, sex, language or religion.

Demonstrators are also not expected to perform any act or utter any words that are calculated or likely to cause or encourage violence against any person or group of persons.

They will also be required to have their face fully identifiable, without wearing any disguise, mask or apparel that could prevent law enforcement officers from identifying them. “A person shall not, at an assembly or demonstration wear a disguise or mask or any other apparel Item which obscures his face or prevents his identification,” the bill states.

A convener may appoint marshals to control the participants in the assembly or demonstration and to take necessary steps to ensure that the assembly gathering at all times proceeds peacefully.

The defences

However, in cases of damage, it will be a defence to a claim against the conveners if they prove that they did not permit or connive at the acts that caused the damage, or if the offence did not fall within the scope of the objectives of the assembly or demonstration in question and was not reasonably foreseeable.

It shall also be a defence if the conveners took all reasonable steps within their power to prevent the act or omission in question.

The conveners are also expected to ensure that marshals and participants in the gathering are informed of the conditions of holding the assembly.

Such demonstrations must also proceed and take place at the locality and in the manner and during the times specified in the notice.

The principal object of this bill is to provide a legal framework for regulating assemblies and demonstrations.

It seeks to give effect to the provisions of Article 37 of the Constitution that provides for the right of any person to assemble, demonstrate, picket and petition.

Advance notice

Any person intending to hold an assembly must notify the regulating officer in advance and also give the officer the power to impose conditions on the carrying out of an assembly or demonstration, and such conditions may relate to public safety, maintaining public order or protecting the rights and freedoms of persons.

Section 14 of the bill states that a person shall not convene a public assembly with no or adequate notice; knowingly contravene or fail to comply with the notice of a condition to which an assembly or demonstration is subject to; and hinder, interfere with, obstruct or resist a police officer, convener, marshal or any other person in the exercise of his powers or the performance of his duties.

They should not be in possession of a weapon or any object unlawfully during an assembly or demonstration

Also prohibited is the wearing of any form of apparel that resembles any of the uniforms worn by security forces, including the police and Kenya Defence Forces, or possess any offensive weapon, otherwise than in pursuing lawful authority.

No route deviation

The bill repeals ections 5 (regulation of public meeting and processions) and 6 (prohibition of offensive weapons at public meetings and processions) of the Public Order Act.

Under the bill, police may prevent the participants from proceeding to a different place or from deviating from the route specified in the relevant notice or from disobeying any specified condition, during the conduct of such assemblies.

The bill also proposes that the police can restrict the gathering to a place or guide the participants along the route to ensure that vehicular or pedestrian traffic is not interfered with, and also keep an appropriate distance between participants in the assembly and rival assemblies.

Police can also restrict access to property and workplaces, prevent injury to persons or damage to property,

The bill also requires the police to order any participant interfering or attempting to interfere with a gathering to cease and to remain at a distance from such assembly or demonstration.

The police can take such steps as may be necessary to protect persons and property, whether or not they are participants in the assembly or demonstration.

Constitutional rights

Many Kenyans, however, feel that even though there is a need to ensure that demonstrations are held peacefully and to minimise loss of life and destruction of property, the law should not be used to roll back constitutional rights.

The proposed law is likely to deter the organising of protests, as planners would fear the possible penalties if damage occurs.

If passed, for example, there will be designated areas in which protesting is permitted. However, since one motive of a protest is to draw attention to the cause supported by the conveners and to convince others of the rightness of the cause, this has been seen as censorship and unjustified limitation on the rights to freedom of speech and assembly.

Some legal experts have also said the bill could pose some legal challenges, especially where conveners are expected to be held liable even in cases where there is no intention or commission of actual criminal acts.