NAIROBI Kenya May 28 -Conveners of demonstrations and assemblies will be held legally liable for damages to properties if Parliament passes a proposed Bill.
The Assembly and Demonstration Bill ,2024 which has been sponsored by the Mbeere North MP Geoffrey Kiringa Ruku provides for the conduct of an assembly or demonstration and imposes liability for damage on an organization or person who convenes or takes part in an assembly or demonstration.
Following the tabling of the Bill, lawyers and a section of Kenyans have expressed concern saying the Bill is not only punitive but also unfairly takes away the rights of Kenyans to express their grievances as envisioned by the drafters of the Constitution.
“Where, during the carrying on of an assembly or demonstration, damage to property occurs as a result of the assembly or demonstration, every organisation and every person participating in such assembly demonstration shall … be jointly and severally liable for such damage,” the Bill states.
According to the Bill a ‘riot damage’ is any loss suffered as a result of any injury to or death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of a gathering.
Sh100,000 fine
If enacted, a person who contravenes these provisions commits an offence and shall on conviction be liable to a fine not exceeding Sh100,000 or to imprisonment for a period not exceeding one year, or to both.
During such demonstrations or assemblies, people shall not by way of a banner, placard, speech or singing or in any other manner incite hatred of other persons or any group of persons on account of differences in culture, race, sex, language or religion.
They are also not expected to perform any act or utter any words that are calculated or likely to cause or encourage violence against any person or group of persons.
Additionally, demonstrators will be required to have their face fully identifiable, without wearing any disguise, mask or apparel that could prevent law enforcement officers from identifying them.
“A person shall not, at an assembly or demonstration wear a disguise or mask or any other apparel Item which obscures his face or prevents his identification,” the Bill states.
According to the Bill, a convener may appoint marshals to control the participants in the assembly or demonstration and to take necessary steps to ensure that the assembly or demonstration at all times proceeds peacefully.
However, in cases of damages, it shall be a defence to a claim against the conveners if they prove that they did not permit or connive at the acts which caused the damage, or if the offence did not fall within the scope of the scope of the objectives of the assembly or demonstration in question and was not reasonably foreseeable.
It shall also be a defence if the conveners too all reasonable steps within their power to prevent the act or omission in question.
The conveners are also expected to ensure that the marshals and participants in the assembly or demonstration are informed of the conditions of holding the assembly or demonstration.
Such demonstrations must also proceed and take place at the locality and in the manner and during the times specified in the notice.
The principal object of this Bill provide a legal framework for the regulation of assemblies and demonstrations.
It seeks to give effect to the provisions of Article 37 of the Constitution which provides for the right of any person to assembly, demonstration, picketing and petition.
Any person intending to hold an assembly must notify the regulating officer in advance and also gives the regulating officer power to impose conditions on the carrying out of an assembly or demonstration, and such conditions may relate to public safety, the maintenance of public or der or the protection of the rights and freedoms of persons.
Section 14 of the Bill states that a person shall not convene a public assembly with no or adequate notice; knowingly contravene or fail to comply with the notice of a condition to which an assembly or demonstration is subject to; and hinder, interfere with, obstruct or resist a police officer, convener, marshal or any other person in the exercise of his powers or the performance of his duties.
They should not be in possession of a weapon or any object unlawfully during an assembly or demonstration.
Also prohibited is the wearing of any form of apparel that resembles any of the uniforms worn by security forces including the police and Kenya Defence Force, or possess any offensive weapon, otherwise than pursuance of lawful authority.
The Bill repeals Sections 5 (Regulation of public meeting and processions and 6 (Prohibition of offensive weapons at public meetings and processions) of the Public Order Act.
According to the Bill, police may prevent the participants from proceeding to a different place or from deviating from the route specified in the relevant notice or from disobeying any specified condition, during the conduct of such assemblies.
The Bill also proposes that the police can restrict the gathering to a place or guide the participants along the route to ensure (i) that vehicular or pedestrian traffic is not interfered with, and also an appropriate distance between participants in the assembly and rival assemblies.
Police can also restrict access to property and workplaces, prevent injury to persons or damage to property, according to the Bill.
The Bill also requires the police to order any participant interfering or attempting to interfere with an assembly or demonstration to cease and to remain at a distance from such assembly or demonstration.
Also take such steps as may be necessary to protect persons and property, whether or not they are participants in the assembly or demonstration.
Most Kenyans however feel that even though there is need to ensure that demonstrations are held peacefully and to minimize loss of life and destruction of property, the law should not be used to roll back on the Constitutional rights.
The proposal is likely to deter the organising of protests for fear of the possible penalties if damage occurs.
If passed, for example, there will be designated areas in which protesting is permitted. However, since the motive of a protest is to draw attention to the cause supported by the conveners and to convince others of the rightness of the cause, this has been seen as censorship and unjustified limitation on the rights to freedom of speech and assembly.
Some legal experts have also said the proposed Bill could pose some legal challenges especially where the conveners are expected to be held liable even in cases where there is no intention or commission of actual criminal act.
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