8 May 2019


Amnesty International Kenya is pleased to present these comments on Kenya’s Public Order (Amendment) Bill, 2019 (“the Bill”). Published in a Special Issue of the Kenya Gazette Supplement on March 15, 2019, the Bill seeks to amend Kenya’s Public Order Act (Cap.56) by adding clauses imposing both civil and criminal liability on any person who causes grievous harm, damage to property, or loss of earnings while at a public procession or meeting.

In our analysis, we find that the proposed amendments:

  1. a) offend principles of legality with vague, overbroad and undefined provisions;
  2. b) propose criminal sanctions that are unnecessary and disproportionate in an open and democratic society considering the value and nature of the right to protest and freedom of expression;
  3. c) create a legal lacuna with regard to guidelines in determining compensation for affected persons; and
  4. d) affect Kenyan’s fundamental rights to freedom of expression (Article 33) the right to assemble, to demonstrate, to picket, and to present petitions to public authorities(Article 37)and would therefore require amendment of our constitution as per(Article 255 (e)).

We recommend that:

  1. Delete the offense created under sub-section 11A. The proposed offenses are already properly catered for in the Penal Code. On the proposed treatment of ‘loss to earnings’, we propose that compensation be sought in separate civil proceedings.
  2. Delete the sanction of imprisonment and punitive fines from Section (11A). 3. Revise Sub-section 11B to include clear guidelines for determining compensation and encourage the aggrieved party to institute separate civil proceedings.

Proposed Amendments:

  1. The amendments introduce Subsection 11A “that persons participating in a public demonstration and who cause grievous harm, damage to property and/or loss of earnings will be liable upon conviction to imprisonment for a term not exceeding 6 years or to a fine not exceeding 100,000 or both”
  2. The law also inserts Subsection 11B which proposes that over and above the sentence imposed, that the person or organizer compensates the affected persons on such terms as the court may deem proper to grant.

“Where a person is convicted of an offense under subsection (11A), the court may make an order over and above the sentence imposed, that the person or the organizer compensates the affected persons on such terms as the court may deem proper to grant.”

  1. In the memorandum of objects, the Bill declares that the proposed amendments do not contain any provision that limits any fundamental rights or freedom

Analysis of the proposed Amendments:

A. Amendments are far-reaching and require constitutional review under Article 255(e)

It is noteworthy, that in its memorandum of objects, the Bill declares that the proposed amendments do not contain any provision that limits any fundamental rights or freedom. In reality, these amendments have far-reaching implications on the enjoyment of the right to peaceably assemble, demonstrate, and picket. It also has far-reaching implications for public participation and freedom of expression. The effect of the amendments is to increase criminal sanctions and introduce civil liability in public meetings and assemblies thereby directly creating a fresh layer of limitations to the right to peaceably assemble, demonstrate, picket, and present petitions to public authorities. As such, the amendments further limit the enjoyment of those rights and fundamental freedoms. The declaration erroneously attempts to avoid the implications of Article 255 (e) of the Constitution of Kenya which requires any amendment touching on human rights to be subjected to a referendum. This provision was ostensibly put in by the authors of the constitution to avoid situations where parliament interferes with the enjoyment of fundamental rights and constitutional structures as was seen under the previous constitution.

B. Vague Provisions

By the principle of legality, any law attempting to limit any right or fundamental freedom must be clear and concise.

Legality is a fundamental rule of criminal law that espouses that nothing is a crime unless it is clearly forbidden in law. The principle of legality is not only a core value of human rights but also a fundamental defense in a criminal prosecution that ensures no crime exists without a legal ground.

It is a well-established principle that Laws may not grant officials largely unfettered discretion to use their power as they wish, nor may laws be so vaguely worded as to lead reasonable people to differ fundamentally over their extension.

The proposed Subclause 11B states that where a person is convicted of an offense under Subsection (11A), the court may make an order over and above the sentence imposed, that the person or the organizer compensates the affected person on such terms as the court may deem proper to grant. The key concern here is that the amendment does not define who an affected person is.

The offenses of causing grievous harm, damage to property, or loss of earnings are vague, overbroad, and undefined, which allows law enforcement agents and judicial officers broad and unacceptable discretion to determine if an individual has violated the Act. It is for the above reasons that Amnesty International Kenya finds that the proposed amendments especially concerning the meaning of the above words fails the legality test in that there is no legal definition nor standard understanding as to their meaning. If they are allowed to stand, they will be abused as it will rely on the individual judgment and discretion of a police officer, prosecutor, or judicial officer thereby subject to discriminatory and irregular application.

C. Unnecessary and Disproportionate limitation on an open and democratic society

Persons convicted of an offense under subsection (11A) may be subject to imprisonment for up to 6 years, a fine not exceeding one hundred thousand, or both. Amnesty International Kenya finds the above provision to be grossly disproportionate to the prescribed crime. Moreover, the sanction is unnecessary as any criminal activity within or without protests is already catered for under the Penal Code. If a person beats up another person, he or she will be charged with assault; stealing will attract a charge of theft or robbery; and, so on and so forth.

D. Lack of guidelines for court-ordered compensation

Sub-section (11B) permits a court to order compensation to the affected persons in addition to the criminal sanctions described in Sub-section (11A) on such terms as the court may deem proper. It is noteworthy that the law does not provide guidelines for calculating compensation or limit civil damages in any way. This lacuna in law leaves an undesirable and unlawful discretion to judicial officers to discriminatorily and without legal basis to determine compensation. There is little clarity on rules of procedure, the standard of proof, and culpability.

Our four findings and three recommendations have to be seen in a broader national and international historical context. Freedom of expression, protest against injustice, and petitioning authorities have been a key part of our country’s democratic history during the fight against colonization, post-colonial Kenya, the second liberation struggle, and contemporary Kenya.

The ability to assemble has been historical of fundamental importance not only as a means of political expression but also for the safeguarding of other human rights. These proposed amendments seek to impede our freedoms and liberties to express ourselves through public expression, protests, and petitioning authorities. The right to protest is closely interlinked with the right to freedom of expression and the right to participate in public affairs. It is a legitimate and necessary part of democracy that sits next to the right to vote as a vital means to directly have a say in public life. As such, protests contribute to good governance, accountability, and fighting government excesses and oppression. It is a critical part of Kenya’s National Values and Principles of Governance.

Article 24 of the Constitution requires any person or entity seeking to limit a fundamental right must satisfy that the limitation factors in the nature of the right, the purpose of the limitation, nature, and extent of the limitation, whether there is a less restrictive means to achieve the purpose and most importantly, imposes an obligation to the person seeking to limit the it such right to justify that the limitation abides by the law.

Moreover, Article 19 (3) of the International Convention on Civil and Political Rights, which Kenya is party to, prescribe the three-part test regarding the legal requirements for laws limiting freedom of expression which can be extended to the right to protest as a form of expression.

The amendments as currently formulated infringe on and offend national constitutional values and international human rights standards.

Article 37 provides that every person has a right to peaceably and unarmed assemble, to demonstrate, to picket and to present petitions to public authorities.

Article 21 of the International Covenant of Civil and Political Rights (ICCPR) and Article 11 of the African Charter on Human and Peoples’ Rights (ACHPR) which Kenya is party to by dint of Article 2 (5) and (6) if the Constitution -similarly protects a the right to assemble, stating that the right may only be restricted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Moreover, Article 19 of the ICCPR guarantees the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds. Restrictions on this right are bound by a three-part test: they must be

  1. provided by law; and
  2. necessary and proportionate and
  3. must pursue a legitimate aim concerning the rights or reputations of others or the protection of national security or of public order, or of public health or morals.

Should this amendment pass it will have far reaching effects on the application and enjoyment of Article 37. It will criminalize expression and legitimate protests of political parties, and public interest organizations including those promoting the rights of consumers, women, youth, labor, landless, and displaced people among others. For this reason, we petition the National Assembly to reject the amendments on the basis of incongruence with our constitution and further strengthening of an outdated and colonial relic, The Public Order Act.

We are willing and prepared to appear before the Departmental Committee on Administration and National Security to represent and elaborate on these views.

Amnesty International Kenya

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House, P.O Box 1527-00606 Nairobi, Kenya

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