FACTS
In 2016, during a series of protests organized by the Coalition for Reforms and Democracy (CORD) against the Independent Electoral and Boundaries Commission (IEBC), violence, destruction of property, and injuries were reported. The protests lasted several weeks and affected businesses and non-protesters.
Ngunjiri Wambugu, a member of the public, filed a constitutional petition. He claimed that the protests, although allowed under the Constitution, were no longer peaceful and harmed people who were not participating. He supported his case with newspaper articles and photographs showing the aftermath of the demonstrations.
He asked the court to:
- Clarify that the right to protest only applies when it is peaceful and without weapons.
- Recognize that people not participating in protests have equal rights.
- Order the government to create laws and regulations to ensure peaceful demonstrations, including specifying where protests can happen, who pays for damages, and who is responsible when things go wrong.
ISSUES
- Did the protests violate the rights of people who were not involved?
- Did the government fail to regulate the right to protest and protect the public?
- Should the right to protest be limited in some way to prevent harm to others?
- Does the Constitution allow such limitations, and are they justifiable?
- Does the court have the authority to order the government to create laws and rules about protests?
RULING
The court agreed with the petitioner and ruled that:
- The right to protest, as stated in Article 37 of the Constitution, is only protected when it is peaceful and unarmed.
- The rights of non-protesters are just as important and must be protected.
- The government, particularly the police and the Ministry of Interior, failed to enforce existing laws under the Public Order Act during the CORD protests.
- There is a need to put in place regulations to prevent protests from turning violent, to ensure those responsible can be held accountable, and to balance the rights of all citizens.
- The court has the power to direct the government to act in the public interest, including ordering the creation of such regulations.
APPLICATION
The judge examined how demonstrations were conducted and the evidence presented. He found that the protests had led to real harm—businesses were looted, public and private property destroyed, and lives were endangered. He took judicial notice (accepted the facts without further proof) that this was widely reported and known.
The judge also referred to Kenya’s Constitution, international human rights instruments (like the ICCPR and African Charter), and case law from Kenya, South Africa, and Australia. He emphasized that although the right to protest is important in a democratic society, it should not override the rights of others or lead to lawlessness.
To balance these interests, the judge explained the principle of proportionality—meaning any limits to a right must be fair, reasonable, and necessary to protect others. In this case, the proposed limitations (like designating protest zones or holding organizers accountable) were seen as justified.
CONCLUSION
The court declared that:
- Protesters must remain peaceful and unarmed, and the police must stop protests that involve weapons or violence.
- People not taking part in protests have equal rights that must not be interfered with.
- The government must create clear rules to guide how protests happen, including:
- Designated areas for demonstrations.
- Rules for cleanup and accountability.
- Limits on the number of participants.
- Requirements to get consent from nearby businesses or residents.
- The government must also create a code of conduct for protest organizers, outlining how they’ll ensure others are not harmed and who takes responsibility if damage or injuries occur. Whole case HERE
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