What anti-IEBC protesters should know about the law and picketing
Anti-IEBC protesters march in Kisumu on May 23, 2016. Organisers should educate protesters on constitutional provisions. PHOTO | TOM OTIENO
Opposition party Cord has, for about three weeks, called for demonstrations with a view to putting pressure on the government to disband the Independent Electoral and Boundaries Commission (IEBC).
The protests were at first peaceful but have become increasingly violent resulting in some injuries and deaths. I have observed the protests with interest.
The protests pit many constitutional rights against each other and bring up issues of upholding the rule of law and democracy.
Organisers of the protests said they have a constitutional right to assemble and demonstrate.
Indeed Article 37 of the Constitution states that every person has a right to assembly or conduct a peaceful demonstration or to present their petitions to public authorities.
The right to demonstrate is guaranteed by the Constitution. However, for any demonstration to be legal it has to be peaceful.
Furthermore, the protesters have to be unarmed. Media reports indicate that there have been cases of looting and stoning of vehicles, an indicator that the demonstrations have not been peaceful and neither were all protesters unarmed.
Reading the constitutional provision together it is clear that the manner in which the demonstrations have been conducted could be illegal.
The demonstrators have a right to freedom of expression, also guaranteed by the Constitution. This includes the right to give and seek information of any kind.
However, there is a limit to this right. Expression that is inciting and hateful and likely to be construed as propaganda is illegal. The Constitution says that the State has a duty to protect and uphold constitutional provisions.
In my view this means that it has a duty to ensure that nobody is prevented from exercising their constitutional right, but this also means that the State should enforce the provisos.
Protect the public
This means that if any person goes beyond the constitutional limit then the State should step in and protect the public.
Therefore where participants in a demonstration are armed or violent, then the State can step in and enforce peace. Furthermore, the State can step in and limit speech if it is harmful to the public.
As a peace loving citizen of this country, I appeal to political leaders to respect the rule of law. I am sure that there are many people out there who would love to see our political leaders put their views aside and respect the rule of law.
The new Constitution is the supreme law of the land. It speaks for all sides, it is the umpire and we should go back to it when determining political rights. I will use this opportunity to give our political leaders some tips on achieving a win-win result when conducting demonstrations.
One, organisers should educate protesters on constitutional provisions. That is, no violence, no carrying weapons and no fighting. Leaders should rebuke violent demonstrators and ensure that their followers uphold the rule of law.
Two, be careful what you say in public and on social media. Some comments have incited unnecessary social media wars.
Lastly, if you fail to attain your objectives through peaceful demonstrations then why not go to the constitutional court?
If there is an allegation of breach of constitutional rights then the court is open to determine this.
