Kelly Aduo lost his daughter in November 2020 because doctors in Taita Taveta withdrew care.
County healthcare workers were striking over poor pay, lack of personal protective equipment, and non-remittance of statutory deductions. Drug stores were empty.
An alternative hospital was in Himo, Tanzania, 16.5 kilometres from Taveta, Kenya, where Aduo resides. But it was too late. The daughter died.
Doctors in Tanzania said, if the daughter had been treated much earlier, she could have been alive today.
Aduo felt old, helpless, and broken. He needed to act and spotlight the plight of parents like him, at least to improve the healthcare state and have those responsible for its rundown held to account.
When he returned home, Aduo planned a peaceful protest—one of the lawful strategies in Kenya that get authorities’ attention and cause progressive and transformative change.
He set a date. March 4, 2021.
Aduo notified police to offer security while he peacefully protested.
Cops, however, said the protest will not proceed. They said Aduo should instead deliver his petition to the Senator’s office.
On March 4, 2021, when Aduo wanted to present the petition, police arrested him and seven others. They charged them with assembling “unlawfully”. All deny the offence.
Taveta Magistrate Louiser Adisa on November 10, 2021, will issue a judgement in the case, about five months after putting the accused on the defence.
It emerged during the trial that not all the arrested were planning to deliver the petition. Some were unaware of the happenings—their mistake was to be at the same place as Aduo.
Others, though not part of the plan, supported Aduo’s course. They, too, were victims of poor healthcare in Taveta.
Section 78 (1) of the Penal Code defines unlawful assembly and riot: “When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.”
But article 37 of the Kenya Constitution says every person has the right, peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities. Police told the court that the eight were not armed, had no intention of committing a crime, and did not resist arrest.
Those arrested alongside Aduo are Sharlet Ndiga, 51, Cecilia Mukonyo, 65, and Mariam Matiku, 59. Others are Alex Mzasi, Ruphas Ngura, Mohamed Ali, and MUHURI’s Francis Auma.
Right to protest
Kenya in 1972 ratified the International Covenant on Civil and Political Rights (ICCPR) that promotes and protects the right to protest.
Article 21 ICCPR states: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law, and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
The directives by the Kenya government banning public gatherings and protests, which police used to block the delivery of the petition, has since been declared unlawful and unconstitutional by the High Court.
The National Security Advisory Committee (NSAC) gave the directives on October 7, 2020, in the name of “combating the spread of Covid-19 and containing the weaponization of public gatherings”.
However, Judge Anthony Mrima in August 2021 said the directives violated the constitution.
“An order of Certiorari be and is hereby issued calling into this Court and quashing the entire directives made by the National Security Committee on 7th October 2020 and ratified by the Cabinet on 8th October 2020, for the use of section 5 of the Public Order Act Cap 56 of the laws of Kenya to contain, restrict and prohibit public gatherings, meetings and processions in the name of combating Covid-19 and containing the weaponization of public gatherings.” justice Mrima said.
Article 19 (2) of ICCPR states: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice.”
The right to protest involves the exercise of numerous fundamental human rights and is essential for securing all human rights.
Aduo’s daughter paid the ultimate price of a dysfunctional healthcare system. And when her father wanted it improved, police arrested and arraigned him for assembling “unlawfully”, an act that carries up to a year jail sentence.
MUHURI wants relevant bodies to undertake steps to promote widespread acceptance and dissemination of Principles that set minimum standards for the respect, protection, and fulfilment of the right to protest.
These principles, as analyzed by Article 19, include state obligation on the right to protest, non-discrimination, the limited scope of restrictions on the right to protest, state of emergency, legal protection of the right to protest, and more.