Civil society calls on the government and law enforcement agencies in Mombasa to respect, protect and uphold the right of citizens to protest

November 9, 2020 By: MUHURI, Article 19 Eastern Africa, CSRG and CSJC

A teargas canister that police lobbed during a peaceful protest over theft and misappropriation of Covid-19 funds. Photo: Ernest Cornel.

In the week that began on the 1st and ending on the 7th of November 2020, the Civil Society Reference Group (CSRG) and ARTICLE  19 Eastern Africa, teamed up with Muslims for Human Rights (MUHURI), Kituo Cha Sheria and the Social Justice Centres in Mombasa to address citizens’ concerns arising from what is emerging as a policy in Mombasa County by law enforcement agencies to disrupt and violently disperse every protest and picketing that citizens and their civil society organizations have attempted to hold in the last two years.

It will be recalled that on the 25th of August, 2020, civil society activists protesting against theft of COVID-19 funds by the Kenya Medical Supplies Authority (KEMSA) and demanding accountability were violently dispersed by the police and six of them arrested.  Earlier, on November 11, 2019, long before COVID-19 pandemic, truck drivers, citizens and their civil society organizations protesting against the devastating effects on local economy and livelihoods of the government directive that all transit cargo destined for upcountry and neighbouring countries be transported exclusively by the Standard Gauge Railway (SGR) to the Naivasha Inland Container Deportand, not by road, were equally crudely and violently dispersed by the police.

On December 20, 2018, 20 students of the Technical University of Mombasa (TUM) were arrested and some of their colleagues seriously injured after they protested over a number of grievances with the university authorities, including a directive that all students clear any outstanding fees before writing their end-of-semester examinations. The right to protest and present petitions to public authorities is amply recognized and protected under the Constitution, and the United Nations and Regional Human Rights Mechanisms, including the African Commission on Human and Peoples’ Rights to which Kenya is a signatory.

The United Nations and the African Commission on Human and Peoples’ Rights mechanisms, in particular, have developed international standards and principles that should guide law enforcement agencies and apply at all times before, during and after protests.

It is equally imperative to note that courts, including here in Mombasa, have pronounced themselves unequivocally in the support of these principles.

These international standards and principles require, among others, that governments at the national and county levels to:

  1. Recognize the right of every person to peaceably and unarmed, demonstrate, picket and present petitions to those in authority;
  2. Respect, protect, promote and fulfil the right of every citizen to hold protests;
  3. Be alive to the principle that where any restrictions on the right to protest may be imposed, like during these times of COVID-19, such restrictions must only be aimed at ensuring that protesters comply with any COVID-19 containment measures in place, and not to prohibit them from exercising and expressing their dissent through protests;
  4. Endeavour to facilitate the right of every citizen to protest, especially if the protest is aimed at holding State and public officers to account for resources that the citizens have reasons to believe may not have been used accountable.
  5. Be forewarned that it would be illegal to collect and use personal information from protesters such as mobile phone contacts shared with the police during the planning and notification for protests for the purpose of carrying out surveillance on the individuals concerned.

It is against this backdrop that ARTICLE 19 EA  and the CSRG in partnership with MUHURI, Kituo Cha Sheria and Social Justice Centres in Mombasa have held consultative meetings with law enforcement officers in Mombasa this week, specifically to draw their attention to these provisions of the law and increasing public concerns about their seeming enthusiasm to disallow, disperse and violently break protests, including those for which notifications have been served by the organizers as required under the law.

During the meetings with the law enforcement officers, the organizations also made it clear and enlightened them that COVID-19 must not be weaponized and used as a cover-up to prevent citizens in Mombasa and elsewhere in the Republic of Kenya from expressing their displeasure with the manner in which public funds are misappropriated and affairs of public nature mismanaged.

Similarly, we have also put the law enforcement officers on notice that should they continue with their unlawful conduct and undemocratic tendencies to break peaceful protests by citizens and their legitimate organizations, the undersigned organizations and any other human rights groups will not hesitate to institute legal action and proceedings against individual law enforcement officers and or their bosses, who willfully and without any reasonable cause, act in complete disregard of the provisions of the Constitution and the law governing the right to protest.

There is no doubt that in holding any law enforcement officer accountable and liable for unnecessary and excessive use of force, especially the use of lethal force that leads to loss of life and limb, accountability and liability will extend to their being called upon to take responsibility for the treatment and payment of damages that will accrue from their illegal and criminal actions.

The statement is issued and signed by MUHURI, Article 19 Eastern Africa, Civil Society Reference Group (CSRG) and Changamwe Social Justice Center.

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