ARTICLE 19 strongly condemns yesterday’s killing of a protestor by police, and injury of others who had joined the Coalition for Reforms and Democracy (CORD) politicians calling for the removal of the Independent Electoral and Boundaries Commission (IEBC).
ARTICLE 19 urges the police to respect Article 37 of the Constitution, which guarantees citizens the right to peacefully assemble, demonstrate, picket, and present petitions to public authorities, as well as its obligations under international human rights law.
“We send our condolences to the family of Bernard Ngatia and urge the Independent Policing Oversight Authority (IPOA) to quickly investigate the killing with an aim of bringing the perpetrators to account,” said Henry Maina, ARTICLE 19 Eastern Africa Regional Director.
Since late April 2016, the opposition CORD has been staging protests every Monday at IEBC offices demanding resignation of the Commissioners. Despite these protests being violently dispersed by police, the politicians and their supporters have vowed to continue until their demands to have the commission reconstituted are met.
ARTICLE 19 is concerned that these protests have been marred by violence and use of excessive force by police, including the firing of live bullets and tear gas into crowds. We note that while freedom of assembly and association is not an absolute right, it cannot “be limited except by law, and then only to the extent that the limitation is reasonable, justifiable in an open society” (Article 24, Kenya Constitution). Any limitation must be subject to a three part test; a limitation will only be acceptable when ‘prescribed by law; when is necessary and proportionate; and when the limitation pursues a legitimate aim’ namely: the interests of national security or public safety; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others.
This test has not been observed by police and authorities while dispersing the opposition leaders and their supporters.
ARTICLE 19 reminds the Kenya government that those who take part in protests and assemblies have a number of protected rights, including the rights to: freedom of peaceful assembly, expression, association and belief; participation in the conduct of public affairs; bodily integrity, including the rights to security and to life; dignity; privacy; and an effective remedy for all human rights violations.
As a party to the UDHR, ICCPR and Africa Charter, the Kenya government thus has clear legal obligations to promote and protect these rights and, therefore, the right to protest. Even if participants in an assembly are not peaceful and as a result forfeit their right to peaceful assembly, they retain all the other rights, such as the right to life and the right to be free from cruel, inhuman or degrading treatment subject to the normal limitations. No assembly should thus be considered unprotected.
We therefore urge the Kenyan Government to:
• Ensure that authorities prepare and plan for assemblies with a view to ensuring the best possible conditions for the exercise of the right of peaceful assembly, and with a view to preventing and avoiding situations where they might need to resort to the use of force
• Actively protect protesters, alongside others, from any form of threat or violence from those who wish to prevent, disrupt or obstruct protests, including agents provocateurs and counter-demonstrators;
• Speedily and effectively investigate cases of attacks on peaceful demonstrators with a view of bringing the perpetrators to account;
• Ensure force is only used when strictly necessary and in proportion to the threat of violence. The use of force should only be considered necessary where all other means of de-escalation and preventing further violence have been exhausted;
• Prevent, hinder or restrict the right to protest only to the extent allowed by international human rights law.
For more, please contact: Henry Maina, Director, ARTICLE 19 Eastern Africa
on Email: [email protected]
or call on +254 727 862230