Press Release: Freedom of Assembly: Obligations, Rights and Responsibilities

The Commission continues to monitor with concern the human rights violations and violence perpetuated in the context of the ongoing demonstrations including killings, arbitrary arrests and detentions, torture, cruel, inhuman, and degrading treatment as well as the persistent restriction and denial of the right to assemble and hold demonstrations. Indeed, the Commission had to invoke its protection mandate, during and after the Saba Saba rallies that were held on the 7th of July 2023, to ensure that those arbitrarily arrested and detained obtained justice. Further, the KNCHR strongly condemns the utterances of leaders inciting others to violence, issuing threats, and encouraging excessive use of force and firearms on demonstrators.

The Commission reiterates that the right to assemble, demonstrate, picket, and present petitions to public authorities is guaranteed under Article 37 of the Constitution to all, provided that demonstrators are peaceful and unarmed. This Article places an obligation on the State to facilitate all in the exercise of their right to demonstrate and assemble without favor or discrimination. The facilitation of this exercise by the State includes availing adequate security for all during demonstrations. Any person who restricts the enjoyment of peaceful demonstration is in contravention of the Constitution.

Article 37 further places a responsibility on all who want to exercise this right to exercise it in the context of the law. While it is important for citizens to exercise their rights and freedoms as enshrined in the Constitution, it is equally important to ensure that such demonstrations are carried out in a peaceful and calm manner. Violent protests and the destruction of property undermine the very ideals that demonstrations seek to promote.

In exercising our mandate to monitor compliance with human rights principles and the rule of law by both the state and citizens, KNCHR staff and monitors will be strategically deployed across the country to document the demonstrations and will share our findings as the day unfolds.

Thus, the Commission calls on collective action and respect for the tenets and spirit of the Constitution as follows: 

To the National Police Service:

1. Observe the provisions of the Public Order Act and uphold Article 37 of the Constitution without fear, favor, or bias, and be guided by the principles of national security more particularly under Article 238 (2) of the Constitution;
2. Provide security and protection to all including demonstrators, their leaders, civilians as well as journalists covering the demonstrations in line with the Constitution and the law;
3. Respect and uphold the rights and freedoms of demonstrators during policing operations;
4. Restrain from using excessive force, firearms, and torture to disrupt peaceful protests, and only use reasonable, proportionate, and necessary force as a last resort within the confines of the law. To this extent, endeavor to isolate the criminal elements within the demonstrations and restrain from indiscriminate use of force and firearms on crowds;
5. Arrests made during and after the demonstrations should be lawful and be brought to court before a court as soon is reasonably possible but not later than 24 hours after being arrested. Further, those arrested should be treated fairly and humanely, in accordance with the law. The right to bail/bond must be adhered to.
6. Conduct investigations, arrest, and ensure timely prosecution of perpetrators of illegal activities and inciters of violence.