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Press Release: Upholding Constitutional Rights During Demonstrations

Kenya National Commission on Human Rights

Press Statement: Nairobi, Saturday July 8th, 2023 For Immediate Release:

Upholding Constitutional Rights During Demonstrations

 

The Kenya National Commission on Human Rights (KNCHR) expresses its deep concern regarding yesterday’s incidents of police brutality during the peaceful demonstrations that took place across the country during the commonly known 7th July date of "Saba Saba." The Commission strongly condemn the excessive use of force, arbitrary arrests, and denial of bail and bond to citizens exercising their fundamental right to protest, as enshrined in the Kenyan constitution. Furthermore, KNCHR emphasizes the need for the government to create an enabling environment for the exercise of these rights while upholding constitutional obligations. The acts of police brutality, including the use of excessive force resulting in injuries and the arrest and detention of peaceful demonstrators, are clear violations of these constitutional provisions.

Article 37 of the Constitution is unequivocal that “every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”. Equally, those who have been arrested and/or detained must be treated in a humane manner and their rights and dignity respected as dictated by the law. They must not be subjected to torture or cruel, inhuman or degrading treatment or punishment. Further, police officers must proactively and in a professional manner work towards helping to defuse tension and preventing dangerous escalations during the demonstrations.

The government may not always agree with the decision of the populace to exercise their rights, as outlined in Article 37. However, once individuals choose to exercise their rights, the government is obligated to provide a secure environment that upholds their safety, avoids injuries and prevents arbitrary arrests. These requirements are enshrined in the constitution and must be upheld by law enforcement agencies. Under the Kenyan constitution, the fundamental rights and freedoms of all individuals are safeguarded. These rights are crucial pillars of a democratic society, and it is essential that they are respected and protected, particularly during public demonstrations.

During yesterday’s Saba Saba demonstrations, there are reported cases of various human rights violations, including but not limited to:

  1. Right to Life: The right to life is inviolable and protected under the Kenyan constitution. Regrettably, there is a reported incident where excessive use of force by law enforcement agencies resulted in a loss of life in Migori County. This incident is deeply troubling and demands immediate investigation and accountability.
  1. Freedom from Torture and Cruel, Inhuman, or Degrading Treatment: The constitution explicitly prohibits torture or cruel, inhuman, or degrading treatment. It is disheartening to note that during yesterday’s demonstrations there are some people participating in the demonstrations who were subjected to excessive force, physical abuse and mistreatment, as was evidenced by cases reported in the media. Such actions are unacceptable and undermine the principles of human dignity and respect.
  2. Right to Liberty and Security of the Person: The right to liberty and security of the person is a fundamental right protected by the constitution. However, there are reports of arbitrary arrests and detentions that took place during the yesterday’s demonstrations. The constitution requires that arrests be carried out in accordance with the law, with proper legal procedures, and without undue delay. Arbitrary arrests violate these principles and must be addressed.
  3. Freedom of Expression and Assembly: The right to freedom of expression and peaceful assembly are essential components of a democratic society. It is concerning to note that some individuals exercising their rights to express their views and assemble peacefully faced intimidation, harassment and violence. The constitution explicitly protects these rights and demands that they be respected and protected.

The Commission further wishes to bring to the fore the right to bail and bond as enshrined in the Kenyan constitution and the relevant provisions of the Police Act. KNCHR notes there is a sizeable number of individuals arrested during yesterday’s demonstrations; and have so far been denied police bail without valid justifications, contrary to the constitutional provisions and the principles of fairness and justice; and are currently being held in police stations in various parts of the country. The Police Act provides guidelines for the exercise of police powers, including the arrest and detention of individuals. It is crucial that law enforcement agencies adhere to these guidelines and ensure that the right to bail is respected during arrests and subsequent proceedings.

In view of the above, the Commission calls upon the relevant authorities to take immediate action to address the following issues:

  1. End Police Brutality: KNCHR demands a thorough investigation into all reported incidents of police brutality during yesterday’s Saba Saba demonstrations. Those responsible for violating citizens' rights through the use of excessive force must be held accountable for their actions.
  2. Respect the Right to Protest: Law enforcement agencies should receive and acknowledge notifications of public assemblies in accordance with the Public Order Management Act. This will enable proper coordination and prevent unnecessary confrontations between protesters and the police.
  3. Uphold the Right to Bail: The denial of bail and bond to individuals who were arrested during the demonstrations is unconstitutional. KNCHR calls on the National Police Service to ensure that bail processes are conducted fairly, in line with the provisions of the constitution.

Roseline DA Odede

Chairperson

Kenya National Commission on Human Rights

 

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