The undersigned members of the #FreeToProtest coalition are deeply disappointed by the recent judgment by the Chief Magistrate’s Court in Mombasa, which found six human rights defenders guilty of engaging in an illegal assembly. In the context of the shrinking civic space in Kenya, we believe the judgment sets a dangerous precedent in the free expression landscape and further delegitimises the right to protest.
Police arrested the six activists in Mombasa Central Business District on 25 August 2020 after they allegedly participated in demonstrations over the misappropriation of COVID-19 funds. The demonstrations had been planned in various parts of the country, including in Nakuru, Kisumu and Nairobi counties. The groups wanted individuals behind the misappropriation to be arrested and charged in courts of law. Authorities charged the six activists with violating three provisions of the Public Health Rules 2020 (COVID-19 rules). On 4 February 2022, the Court found them guilty of engaging in a prohibited gathering and failing to maintain a physical distance of not less than one meter from another person in a public place. They were found not guilty on the other charges. The Court will decide on the sentence against the activists on 21 February 2022.
“The #FreeToProtest coalition remains highly alarmed by the onslaught on civic space by the state including through punitive judicial decisions continually stifling fundamental freedoms and human rights. There are justified fears that this judgment against rights holders will set a dangerous precedent for the State to crack down on the expression of opinions, especially in regard to the activities of public officials,” said Mugambi Kiai ARTICLE 19 Eastern Africa Regional Director.
ARTICLE 19 has been monitoring conditions for civic space in Kenya and documented and raised concerns about how the government is using the COVID-19 pandemic to curtail fundamental freedoms including freedom of expression, association and assembly. Since the advent of COVID-19, law enforcement officers have dispersed protests under the guise of enforcing COVID-19 regulations, arrested and/or charged organisers and participants for failure to adhere to the regulations prohibiting public gatherings and failure to maintain social distance.
In addition to the use of excessive force on protesters, arbitrary arrest and detention of journalists and human rights activists by law enforcement agencies, the growing number of court rulings criminalising protests are contributing to the stifling of fundamental freedoms and human rights. This is increasingly worrying.
For example, in April 2021, Mutemi wa Kiama was arrested for publishing infographics on social media concerning political, economic and transparency rights and charged with alleged contravention of the Computer Misuse and Cybercrimes Act (2018). The court issued punitive orders including directing that his social media accounts be blocked and barred the activist from expressing himself on matters of interest, thus violating his right to free speech, freedom of association and online assembly.
The #FreeToProtest coalition led by ARTICLE 19 Eastern Africa calls on the Kenyan government to specifically abide by its obligations under the African Charter on Human and Peoples’ Rights (Banjul Charter) and the International Covenant on Civil and Political Rights (ICCPR) to ensure the right to freedom of expression and the right to peaceful assembly. The coalition reminds the Kenyan government that even during the COVID-19 pandemic, people must have avenues to express their opinions, including through protest, and only limit the exercise of that right as strictly required to protect public health. Moreover, the judiciary should desist from making punitive judicial decisions that stifle fundamental freedoms and human rights.
“The decision is not final as this was a determination by the Court of the first instance and therefore the judicial avenues to challenge the decision have not been exhausted. Consequently, we will follow up on the case to its final determination and hopefully a higher court will make a ruling which furthers the rights to protest,” said Marie Ramtu, Executive Director, Muslims for Human Rights (MUHURI).
For more information, contact:
Mugambi Kiai, Regional Director Article 19 Eastern Africa: [email protected]
Marie Ramtu, Executive Director, Muslims for Human Rights (MUHURI): [email protected]
Muslims for Human Rights (MUHURI)
Crime Si Poa
Red Vests Movement