The Confidence from the Constitution

On a sunny Tuesday morning in January there was an awkward scene outside Milimani Courts. Hundreds of doctors gathered, most in their signature white coats and neck hugging stethoscope, not conducting a medical camp though, but endlessly singing Bado Mapambano among many other —songs that have become the trademark tunes during public demonstration. They were members of the Kenya Medical Practitioners and Dentists Union (KMPDU), and their officials were tucked away somewhere in the courthouse building. The Employment Labour Relations Court (ELRC) was hearing whether they should be committed to civil jail ostensibly for defying court orders.

The police, in those mean-looking green trucks, waited close by– but somewhat helplessly. Maybe they were waiting for orders from above, maybe not. Maybe they had finally, I thought, read Articles 36 and 37 of the Constitution allowing for the right to assemble, demonstrate and picket. And as the doctors started on one of my favourite protest songs – Maovu yakija sote tuko tayari – I was tempted to join in. The officials were not sent to jail, at least not that day. And when they eventually walked out of the Courthouse to join their chorusing colleagues outside, nothing could raise the assembly’s tempo higher.

Watching, one might have imagined that freedom of assembly, demonstration and picketing were well respected in Kenya. Not so. In fact, the previous day (January 30) I had been in this building to receive a judgment in a case brought by Boniface Mwangi. It is this case I want to use to explain how public interest litigation has averted the threat by the State to muzzle the freedoms to associate, assemble, demonstrate and present petitions to public authorities.

The Protest

Team Courage, which brings together valiant young Kenyans, including Boniface Mwangi, decided in December 2015 to organize a march to State House to protest the spiralling levels of corruption. They did what the Public Order Act required: delivering a notice to Officer Commanding Station (OCS) Kilimani of their plan to march to Gate A at State House to present to the president or his designate a petition requiring him to act decisively on corruption. The march was to be on December 9^th 2015—international Anti- Corruption Day.

When they presented their petition to the OCS Kilimani, he declined to take it, instead directing them to the Officer Commanding Police Division (OCPD) Kilimani— about 20 metres away. OCPD enthusiastically received the Notice, and inscribed on it “March to State House Gate A, Not Allowed.” No reason, not a word more. Team Courage sued.

In the case, argued by lawyers from Katiba Institute, Boniface Mwangi contended that the action of the OCPD was contrary to the constitutional principle on the rule of law. First, under the Public Order Act, the Officer with powers to act on a notification is the OCS and not OCPD. Since the right to assemble or demonstrate is granted by the Constitution, all an Officer can do is to advise those convening the gathering that they should postpone their activity on the basis that another assembly or demonstration would be taking place at the same venue at the same time. Second, he argued that no explanation was given for the refusal to allow Team Courage to hold its assembly and demonstration. Under the Constitution, public officers must provide reasons when they make a decision that adversely affects a person.

But, critically, he underscored the crucial importance of the freedom of assembly, demonstration, picketing and presenting petition to public authorities. He drew the attention of the Court to the fact that historically, the State had been overzealous to violate these rights as a means of ensuring that the public did not bring forth complaints of transgressions by the State.

The Attorney General tried to justify that the action of the OCPD, and in the process threw a curve ball. He argued that instead of taking the Petition to State House Gate A, Team Courage should have gone to Harambee House. But Team Courage had justified its choice of State House, including the fact that Uhuru Kenyatta generally transacts his business there – including partisan business – and rarely goes to Harambee House. He also had held a series of meetings on corruption at State House.

Judgment of the Court

Justice Lenaola agreed with all the petitioner’s arguments except on choice of venue. He essentially found that the law gives the OCS, not OCPD, powers to receive and advise on notifications of demonstrations. Hence in receiving the Notice and ostensibly “banning” the assembly and march, the OCPD had acted illegally and in excess of his powers. Moreover the judge found that the OCPD had further violated the constitution by failing to provide Team Courage with reasons for acting as he did. Thus the action of the OCPD in prohibiting the march was invalid.

Although Justice Lenaola accepted a critical principle that the right to assemble and demonstrate includes the right to choose where to conduct their assembly or protest, he said that, where an existing law excludes an area from such assembly or demonstration, that may be a reasonable limitation. In this case, he reasoned that because the Public Order Act has designated State House as a protected area, demonstrations at State House were limited by law.

In sum, what the judgment does is to re-anchor the constitutional importance of the freedom of assembly, demonstration, picket and presenting of petitions. The action by Boniface Mwangi and Team Courage was critical in the development of constitutionalism, because it has become commonplace for police to try and limit the freedom of assembly and demonstration by pretending that the law gives them the power to grant permission for such assemblies or demonstrations. Justice Lenaola underscores the importance of these freedoms by stating that they are “important component for the true existence of a democratic society.” He goes on to confirm what the South African Constitutional Court has said about the right of assembly: that it “exists primarily to give a voice to the powerless” being in most cases, the “only mechanism available to them to express their legitimate concerns.” So true, and especially to doctors who had been hollering for days into the waxed ears of CS Mailu and PS Muraguri.

Ending Note

We have a government that has a great propensity for the old dictatorial tendencies. A government that is highly insensitive and contemptuous of its citizen. In the last four years, demonstrations against public authorities have become part of Kenyans’ repertoire. It would seem that, unless citizens engage in civic action, our current government will not listen to their views. It happened with OKOA Kenya, and it took their going to the streets to force a recalcitrant and incompetent Independent Electoral and Boundaries Commissioners out of office. Even then, the court had to intervene to ensure that the State stopped interfering with OKOA’s right to assemble and demonstrate. And this is just one example of many where courts have had to intervene to protect these freedoms. Had the courts not been there, or had judges not exercised judicial courage, Kenya might by now have fallen back to the days when it was illegal to be in a gathering of more than five people without a licence.

It is an unfortunate truth that the courts are needed precisely because government disrespects the constitution and people. As with other freedoms, courts continue to be the last bastions of hope. One hopes that the judges continue to realize that the survival of the 2010 constitution and freedoms guaranteed therein depends largely on their courage. This decision may not have gone far enough, but it has strengthened the constitutional anchor of the rule of law and reassured Kenyans of the courts’ commitment to protect the right to assembly, to demonstrate and to petition.

Waikwa Wanyoike

The author is the Executive Director of Katiba Institute.