Introduction
Just like in India, we cherish our Article 19(1)(b) which states that every citizen has a fundamental right to assemble peacefully without arms, including the right to hold public meetings, demonstrations, and processions similarly, Kenya has its Article 37 which gives the Kenyan citizens the right to peacefully and unarmed, congregate, demonstrate, picket, and offer petitions to governmental officials. But recently, the Kenyan government has passed the ‘Assembly and Demonstration Bill 2024’ (‘the Bill’) where its provisions under the pretence of establishing neutral time/place/manner regulations in forming assemblies and demonstrations effectively impose disproportionate restrictions on the basic freedom of assembly and demonstration, recognised by Article 37 of the Kenyan Constitution.
The Three Controversial Provisions
The first being, Denying Anonymity Clause, Section 11(c) of the Bill prohibits individuals at assemblies or demonstrations from “wearing a mask or any other apparel or item that obscures their face or prevents their identification”. The intent behind this provision is to make sure that protesters can easily be seen and recognized by the State, thus disallowing them to exercise their constitutional right under Article 37 while remaining anonymous.
In this light, it is crystal clear that the provision is unconstitutional. Most jurisdictions accept the prima facie proposition that it is often trite that for persons to enjoy rights such as freedom of speech, assembly and association, they have to do so with privacy. This is especially desirable when people have valid reasons for having a visceral fear of reprisals from the State or some other entity. The same can be seen in India during the time of anti-Citizenship Amendment Act protests, where the police used facial recognition to identify the protestors in Delhi and Uttar Pradesh even though the same violates Article 21 as per the judgement of Justice K.S. Puttaswamy (Retd.) v Union of India where the Supreme Court had ruled that privacy is a fundamental right, even in public spaces. If such this right is to be infringed, the government must show that its action is sanctioned by law, proportionate to the need for such interference, and in pursuit of a legitimate aim.
Article 19(3) of the Indian Constitution allows restrictions on the right to freedom of assembly based on sovereignty, integrity, and public order. Similarly, Article 24(2) of the Kenyan Constitution limits the right under Article 37 but does not mandate identity disclosure when restricting assembly rights. Since protests in Kenya have largely remained peaceful it, therefore, makes Section 11(c) unconstitutional.
The second being, the Accountability Clause, In this respect, the provisions of Section 8(2)(b) of the Bill which states “the payment of the cleaning charges that may emerge from the holding of the assembly or protest” and Section 12(1) stating “Every organisation and every person participating” in the assembly shall be ‘jointly and severally liable’ for the damage unless they can satisfy certain conditions (that they did not ‘permit’ the acts, that the acts were beyond the ‘scope’ of the assembly, or that ‘reasonable steps’ were taken to prevent the acts). Notably, the clause states that just ‘forbidding’ the act does not constitute sufficient proof that reasonable efforts were taken to “prevent” it.
It appears to do so, albeit indirectly, in two ways, – First of all, they shift a large part of the responsibility to the organisers of the demonstration and second, they expect conditions that are intrinsically contradictory to the general nature of a protest. When all these measures are put into practice, people will be discouraged from taking up the position of being the formal organisers since the consequences and liabilities are dire.
Thus, since the Bill requires protests to have a registered organiser, this of course inevitably leads to a decrease in people’s desire to engage in protests, as well as to organise them. Politics and demonstrations are always an unpredictable phenomenon, but depending on who all participates, when a person or organisation announce a protest, it is not the case that those attending will be recommended to us with their identification checked. Moreover, it means that checking IDs would disorient the idea of a public demonstration in the first place.
This unpredictability means two key things: the first, that formal organisers cannot always hold the string on those who attend; and the second, that protests do not always call only bona fide citizens but such active elements as ‘spoilers’ or agents provocateurs deliberately sent by other parties, sometimes the State, in order to provoke rowdiness or violence, to discredit the protest.
For this reason, the only thing that protest organisers can religiously do is to declare the aims and goals of the protest and assure people that it will be a violence-free protest. The contentious feature of the Bill is that it becomes clear that just doing this is insufficient for it to be stated that all reasonable endeavours were made so that such property damage did not occur. Since organisers cannot realistically do more without diluting the protest, the parameters of effect achieved in such protests become apparent.
The Kenyan government may claim that Section 12(1) of the Bill does not bring collective responsibility as people or organizations can escape culpability if they demonstrate they were not the ones to destroy private property. Still, the Bill negates this defence by eradicating a single viable way of proving non-responsibility.
Section 12 infringes another constitutional right by displacing the rationality test with an unreasonable burden on the citizen to justify the exercise of his constitutional right against the State’s unjustified limitation of the same right.
In other words, it puts the onus on either an individual or an organization entitled with their constitutional right to exercise their freedoms to demonstrate that they were not to blame for any harm done, not the other way around as with the State. This reverse burden is well out of the path of constitutional law and is also a gross violation of Article 37.
Consequently, it is also clear that the heretofore harmless “cleaning up” fees of Section 8 are patently unconstitutional. It is practically impossible for the organisers of a protest to control every person’s behaviour, for example, people cannot be stopped from littering and deterrent factor like fines would not be useful in these scenarios as it would be difficult to fairly enforce fines when identifying the responsible party.
Littering, for example, could be caused by bystanders, counter-protesters, or even authorities present at the event. Holding organisers accountable for every instance of misconduct creates an arbitrary and unjust burden.
Furthermore, holding organisers accountable for every protester’s actions assumes they have absolute control, which is unrealistic in large, public gatherings. Unlike private events, protests are spontaneous and involve diverse participants, many of whom are not directly affiliated with the organisers.
Section 8 effectively imposes what is known as an unconstitutional condition: it links one’s constitutional right to something that attracts a prohibitive price to be paid, thus making the right meaningful to the individuals who wish to invoke it. It is an unconstitutional condition, but it is between the choice of not organizing a demonstration – the only way the demonstration will legally be allowed to go on – or losing a significant amount of money.
The third being, the Limitation Clause, Section 6(1) provides that the right of assembly and demonstration under Article 37 may be limited under Article 24 as was described under Section 6(2). In more detail, Section 6(2)(c) states that this right cannot be exercised if the assembly or demonstration ‘may interfere with the protection of the rights and freedoms of other individuals.’
However, this wording departs from the wording used in Article 24(2). While, it includes a clause about the “rights and freedoms of others,” it states: “the requirement to safeguard the interest of all individuals so that exercises of their rights and freedoms does not infringe on similar rights of other individuals”. The differences are as varied as in the use of different languages completely different from each other. Section 6(2)(c) changes ‘prejudice’ to ‘affect’ and deletes the word ‘fundamental’.
This distinction is important as with every protest, necessarily an intrusion on the rights of others is affected and somebody’s freedom will be compromised in one way, shape or form: the traffic jam, pollution, disturbance. Article 24(2) has been deliberately shaped with the word “prejudice” which means that the threshold is higher and, probably, there is a demand for proportionality.
It also refers to the still more specific ‘basic liberties’, this means that any liberties that are being relied on to limit a constitutional right must themselves be specifically enumerated by the Constitution as held in the case of Maneka Gandhi v. Union of India where the Supreme court stated any law imposing restrictions on fundamental rights must satisfy the test of reasonableness and be specifically provided for within the Constitution.. The existence of the protest event that causes the inconvenience is not a reason enough to limit it under Article 24(2) because freedom from nuisance is no constitutional right.
Section 6(2)(c) of the Act has a typical vice of being a law that catches too much in this sense i.e. it prohibits or restricts more conduct than is necessary to achieve its intended purpose, thereby infringing on constitutional rights, in this case, the right to protest if interfering with other people’s freedom also offends the principle that the laws should not delegate discretion to implementing officials as held in the case of Grayned v. City of Rockford where it was held that laws should not be giving implementing officials and more so to the police as in this case they are permitted to refuse permits on the grounds of non-compliance with Section 6. This makes it unconstitutional.
Furthermore, it is rather improper to have a provision in the Bill that would lead to imprisonment of those concerned. It is upon the State to explain why civil liability would not be adequate for violation of the Bill’s provisions. It might be almost impossible for the State to make such a justification.
Lessons for India from the Assembly and Demonstration Bill of 2024
The memory of the recent protests such as the ‘farmer protests’ and ‘anti-CAA protests’ are still fresh in our collective memory. During the farmer protests the fundamental right of the people under Article 19(1)(b) was seriously damaged not only by the incumbent government but also by the judiciary. Where the police did not allow groups like “the Kisan Mahapanchayat” to hold peaceful protest at Jantar Mantar citing public safety and well-being being hampered. They approached the Supreme Court where it was decided that if a case regarding which a protest is going on is pending before the case, it’s a solid ground to restrict protests for the same. Which is clearly against the principle of right guaranteed to the people of India and is in line with the limitation clause of the Bill.
During the anti-CAA protests, the Delhi police used facial recognition software to identify the protestors and arrest the same found through the software without any reasonable grounds, which is also in line with the anonymity and excessive accountability provisions of the Bill. All this shows how not only in Kenya but also in India some of the core and fundamental rights of the people are breached by the bureaucracy.
The Indian government needs to keep in mind that people all over the world are not so different from others,. So, if the people of Kenya can protest clearly for a bill that goes against their constitution. The same can also be done by Indians if a certain level of excessive bureaucracy is reached by the incumbent government.
So, it is pertinent for the incumbent government to keep in mind the idea of good governance and upholding the constitutionalism of their particular nation to make sure there is a balance maintained between new bills & rights in consonance with the rights of the people.
Similarly, sedition which fall under Section 124A of the Indian Penal Code has been exploited in the past as a tool to curb freedom to assemble peacefully and without arms which is enshrined in the Constitution of India under Article 19(1)(b). Where people were arrested indiscriminately for expressing their views or for peaceful assemblies which now has been made broader in BNS in section 152, where the words “government established by law in India” are replaced by the word “of India”. This vague term means if there are any views or assemblies that are against any government, public figures, or even society and communities in general they can be easily suppressed.
Hence, the new law of India is not so far behind the Kenyan government bill where freedom to assemble peacefully is getting crippled arbitrarily. Therefore, it becomes an utmost need of our legislature’s attention to amend the vagueness, and arbitrariness of this section so that India doesn’t need to see the similar consequences that are visible in Kenya.
Conclusion
To conclude, the Kenyan and Indian legislations are demonstrating progress that poses a danger to constitutional rights and freedoms such as the freedom of assembly. The Kenyan “Assembly and Demonstration Bill 2024”, and India’s expanding interpretation of sedition laws show the worrying trajectory that the governments undertaking seek to increase limits on free and peaceful protest in the name of law and order.
These provisions not only hindered freedom of expression but also put lots of burdens on protesters and organizers discouraging citizen engagement. The nuances of the laws are vague and have broad meanings which can lead to the arbitrary enforcement of the laws and create threats to democratic values.
As a result, for both nations, constitutional rights have to be protected and efforts to curb assembly have to be reasonable, fair, and in consonance with the principles of democracy. The governments once again have to find a way to balance the rights of people and order, otherwise, they incite further protests and the undermining of the very foundation of constitutional governance.
The Author is a second year student of National Law University Odisha
Image Credits: Getty Images
Constitutional Law Society 
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