For the people or with the people? An appraisal of the right to assembly and the practice in Kenya

The opposition has for decades been a headache to the government of the day through the organization of these demonstrations which springs from Article 37 of the Constitution. Under the wake of the new Constitution promulgated in 2010, the country has witnessed at least three demonstrations organized by the Opposition to wit: following the announcement of the 2013 election results which Raila and his camp disputed and unsuccessfully challenged before the Supreme Court, the opposition called for street demonstrations claiming that the victory had been stolen.[1] Again, in 2016, he called for mass action and demonstrations to push for electoral reforms at the Independent Electoral and Boundaries Commission ahead of the 2017 elections, a move which saw the exit of former IEBC Commissioners led by Chairperson Isaack Hassan and the ushering in of the Wafula Chebukati – led team.[2] Similarly, in 2017, Raila disputed the election results, successfully challenged it before the Supreme Court but opted to boycott the repeat elections by organizing demonstrations on the same day, demonstrations which rocked the country till March 2018 when he struck the handshake deal with the former President Uhuru Kenyatta.[3] The recent demonstrations commenced on the 20^th of March 2023 and were set to run twice a week; on Mondays and Thursdays before being put on hold to usher in bipartisan talks. These latest round of street demonstrations reminds us that protest is a reoccurring property of political systems and will not go anytime soon.

However, the question that behooves us is whether these demonstrations are actually meant for the esteemed interests and benefit of the Kenyan people or they are a mere sculpture of the Opposition for furtherance of their unending political interests which can only achieved when the people are involved hence the “with the people” metaphor. After all, the people hold the sovereign power as per the dictates of Article 1(1) of our Constitution. This Article makes the argument that protests arise in response to perceived opportunities in the political arena with perhaps with well-intentioned means to mobilize supporters, presumably with a view towards launching social movements aimed at redressing the grievances of the people but which ends up being distorted by the very people who call for them; our politicians of course for their individual political benefits. That notwithstanding, we have witnessed running battles between the police and the people. It occurs to me that all the demonstrations have been violently suppressed by the police even if they were meant to be peaceful with the sole end being the gross violation of human rights. Is this justifiable in our rich democratic society and what could be – is – the role of the police service when it comes to manning demonstrations? I hold the same view as majority of Kenyans who feel that it is the police who actually make these intended peaceful demonstrations unpeaceful and chaotic by the use of unreasonable force to disperse the demonstrators. We have witnessed instances whereby teargas cannisters have been launched for absolutely unreasonable reasons.

This paper is divided into five parts. The first part is the introduction. The second part discusses the import of the right to demonstrate and/or assemble in a democracy, with the main focus being the Kenyan democracy. Under this part, I explore the legal basis of this right being the examination of its constitutional and statutory frameworks. The third part explores and delves deep into the limitations placed under this right and majorly discusses the wanton use of the police to quell peaceful demonstrations. The situation of Kenya is negotiated at length. The fourth part is the theory. It is under this part that I attempt to show that in as much as most politicians have well-intentioned means when calling for these demonstrations, there are a few who use it as a means of gaining political seats with the historical trend being the main focus. The fifth and last part is the conclusion and way forward.

II. Understanding the right to assembly, demonstration, picketing and petition in the Kenyan democracy

In their article “Understanding the Historical and Constitutional Making of the Right to Protest in India,” Dhruv Vatsyayan and Arpit Saxena, who at the time of writing the article were second-year LLB students at the Faculty of Law at the Banaras Hindu University, introduces by posing certain rhetorical questions: What if the Bastille was never stormed and Rosa Parks never refused to give up her seat to a white man?[4] What if the Stonewall Inn Riots and Woman Suffrage Movement didn’t shock the world?[5] Would the world be less egalitarian without these markers of protest?[6] Common practice has it that in most situations, protests are the prerequisites for change – certain actions can only be done if the dissatisfied people vehemently express their dissent through protests. We have seen it in even in our universities, the most recent one being Meru University where students demonstrated demanding the reinstatement of their Vice Chancellor who had been suspended, a move which saw his reinstatement by the Cabinet Secretary for Education.[7]

These two young authors further go ahead to quote Karl Max who argued that the socio-political history of human existence has been of struggles, confrontations, protests, and dissents.[8] The right to freedom of assembly is the right to gather publicly or privately and collectively express, promote, pursue and defend common interests.[9] This right is one of the foundations of a functional democratic society whose protection is crucial for creating a tolerant society in which groups with different beliefs, practices or policies can exist peacefully together.[10] Protests have historically been known to inspire positive social change and improved protection of human rights.[11] Additionally, they enable individuals and groups to express dissent and grievances, to share opinions and views, to expose flaws in governance and to publicly demand that the authorities and other powerful entities to rectify problems and are accountable for their actions[12] hence building an informed citizenry. In a political democracy like ours with a regularly elected government, separation of powers and judicial independence coupled with the “winner-takes-it-all” rhetoric/metaphor, genuine competition for political office is inevitable via all means necessary including protests. Malcolm X, with whom I admire so much noted the importance of this right in his Autobiography when he commented as follows:

“I learned early that crying out in protest could accomplish things. My older brothers and sister had started to school when, sometimes, they would come in and ask for a buttered biscuit or something and my mother, impatiently, would tell them no. But I would cry out and make a fuss until I got what I wanted. I remember well how my mother asked me why I couldn’t be a nice boy like Wilfred; but I would think to myself that Wilfred, for being so nice and quiet, often stayed hungry. So early in life, I had learned that if you want something, you had better make some noise.”[13]

While many would dismiss him for the very fact that children, by their nature, often cry when denied something they really want, X makes a point when he says that for one to heard, they better make some noise, which effectiveness cannot be gainsaid!

The Kenyan Constitution has explicitly recognized the right to protest as one of the fundamental rights and freedoms enshrined in our democratic dispensation. Article 19(1) of the Constitution provides that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. Article 19(2) states that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. Clause 3 states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State[14] and are subject only to the limitations contemplated in the Constitution.[15] Freedom to assembly is a constitutional guarantee. Article 37 provides that:

“Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

This right is also guaranteed under the international and regional treaties – which Kenya is a party to through ratification by the dint of Article 2(6)[16] of the Constitution. They provide for the right to peaceful assembly and obligate police to ensure public safety and the protection of the lives and property of citizens during protests. Article 21 of the International Covenant on Civil and Political Rights (ICCPR) which governs the right to peaceful assembly provides as follows:

“The right to peaceful assembly shall be recognized. No restrictions shall 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 (order public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 11 of the African Charter on Human and Peoples’ Rights provides for the right of people to freely assemble with others and that the right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others.

III. Limitation of the right under Article 24 of the Constitution

It is imperative to note that no human rights are absolute and no one right is more important than the other. As such, the right to peaceful assembly often clashes with other rights such as public health and safety or national security,[17] such that at some point, one will be required to give way to the enjoyment of the other hence the requirement of the limitations. Proudly, our Constitution has been hailed world over as a transformative charter.[18] This is because it lays the legal foundation for transformation of the Kenyan society as a whole and introduces a radically different constitutional order from all the previous orders.[19] With this in mind, Muthomi Thiankolu notes that its interpretation and application, therefore, requires a value-centric approach that takes account of the historical, social, cultural and political contexts of the country.[20] Of worthy to note is that historically, the Kenyan state has been riddled with demonstrations after every election cycle which manifests itself as systematic attacks towards a certain group of people. Just like any other right, this right to peaceful demonstrations has limitations under Article 24 of the Constitution. Joshua Malidzo Nyawa argues that through Article 24, the Constitution has entrenched a culture of justification in Kenya where every action of the government must be justified.[21] In Ferdinand Ndung’u Waititu & 4 Others v the Hon. Attorney-General & 12 Others [2016] eKLR, the Court noted that this right was not absolute. It stated as follows:

There is no doubt that the right to assemble, demonstrate, picket and petition as enshrined under Article 37 is not absolute. It is not one of the Article 25 rights. It may be limited by law. In the paragraphs that follow, I will shortly outline the acceptable and known limitations after a brief review of the extent of the right under Article 37.

The challenge is one of balancing the competing rights under Article 37 and other rights. Article 25 of the Constitution which the above passage makes reference lists certain fundamental rights and freedoms that shall not be limited to include:

• Freedom from torture and cruel, inhuman or degrading treatment or punishment;
• Freedom from slavery or servitude;
• The right to a fair trial; and
• The right to an order of harbeas corpus.

Article 24 prescribes that the right and fundamental freedoms may be limited to the extent that the limitation is reasonable and justifiable based on human dignity, equality and freedom. The limitation shall be proportionate to the legitimate aim. The principle of proportionality was considered by the Supreme Court in Karen Njeri Kandie v Alassane Ba & Another Petition No. 2 of 2015 [2015] eKLR. It is well captured by Mativo J in Dullu Kora Elisha v Kenya school of Law & Another, Nairobi High Court Petition 248 of 2017 [2017] eKLR on the two applicable tests:

• The first is the “rationality” test. This is the standard that applies to all legislation under the rule of law;
• The second standard is that of “reasonableness” or “proportionality” which applies when legislation limits a fundamental right in the Bill of Rights. Article 24(1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”

When a Court, tribunal or other authority is interpreting the Bill of Rights, due regard must be given to promote the values that underlie an open and democratic society based on human dignity which includes the principle of human dignity, equality, freedom and the spirit, purport and objects of the Bill of Rights.[22] Since Kenya is a democratic society with a democratically elected leadership, the people of Kenya have a democratic right to assemble and protest to express their dissent and dissatisfaction with the government of the day. It is only through this way that the leadership will know that certain actions may not be in the interest of the nation, prompting the leaders to act accordingly to address these concerns, grievances and criticisms advanced/ directed to them and therefore unnecessary limitations should not be imposed on this right which is closely linked to the right to freedom of expression guaranteed under Article 33 of the Constitution which also is an avenue in which the citizens can openly criticize the government for their actions and inactions. The Court in Robert Alai v the Hon Attorney-General & Another [2017] eKLR, while commenting on this right to freedom of expression stated as follows:

“33. More importantly, public officers have to tolerate criticism in an open and democratic society state because people usually exercise this right granted to them by the Constitution. A legislation’s purpose should not be to suppress this right.

The right to freedom of peaceful assembly is limited under the Public Order Act. The Act prescribes certain procedures which must be followed and prohibits the use of violence in protests. While commenting on the limitation under the Public Order Act, the Court in Ferdinand Ndung’u Waititu & 4 Others v the Hon. Attorney-General & 12 Others (supra) had this to say:

My preliminary view is also that the Public Order Act (Cap 56) contrary to popular views does not limit the right to demonstrate or to assemble. It instead seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order. Part III of the Public Order Act seeks to regulate public meetings and processions by providing for the need to notify the police service and also the power of the police service to stop or prevent a public meeting where appropriate and where it is obvious it will not meet the constitutional objectives. Under the same Part III, the Public Order Act also prohibits the possession of “offensive weapons” at public meetings and processions. In my view, it is a small price to pay to ensure that the assembly or demonstration is peaceful by involving a body enjoined to ensure security, safety and order. Both the participants as well as the non-participants are assured of protection through involvement of security officials.

The Court however cautioned that:

37. It is however not atypical for the protest processions or marches to turn unruly violent and riotous. However, that does not implicate the right to assemble, demonstrate and picket for the basic reason that the Constitution is supreme. The right to picket and to demonstrate which is an essential feature of any democratic society ought to be protected especially where it is shown that the marches often start as peaceful ones. The focus should not be on the fact that they turn violent but rather on how to ensure that they do not turn violent.

38. As I have already pointed out, public demonstrations and assemblies are regulated in a way by the Public Order Act. The organizers also ought to seek to achieve peaceful demonstrations. The police service has an obligation to assure the public of peace and order. The public in these respects include both the participants in the demonstrations and picketing as well as the non-participants. There is a positive obligation on the State to facilitate and protect a peaceful exercise of the Article 37 rights.

Recently, the Court refused to grant Sonko orders for stopping the Azimio protests.[23]

1. The role of the police in protests: A force or service?

When one thinks of a mass demonstration or protest in Kenya, the first image that often comes to mind is a battalion of camouflaged police officers outfitted in riot gear with their shields ready perfectly lined up at the meeting points of the protestors. A clear picture of this was painted in the recent demonstrations. You might have thought that the Nairobi Central Business District was a battlefield! With the bad blood between the police and the citizens specially heightened during the demonstrations, political assemblies in Kenya have never been peaceful. The recent one was marred with mass human rights violations including unlawful killings and unwarranted use of force on the part of the police. On one occasion, a police officer was captured on camera attacking journalists in a motorvehicle resulting to the injury of four journalists.[24] As at now, nine deaths have been confirmed with thirty-five having suffered injuries.

At this rate, it is no longer a secret that there is need on the part of the police to understand the nature and right of this freedom to assemble. It is clear that the police do not understand the Kenyan stand on constitutionalism and democracy. If we cannot uphold the very rights and freedoms that we boast of in our “transformative Charter”, then we will end up with what Professor Okoth-Ogendo described as [a] “Constitution(s) without constitutionalism”[25] The State has an obligation to respect, protect and fulfil the rights of those who peacefully assemble unarmed, including protecting them from third parties provocateurs or violent elements as per the dictates of Section 24 of the National Police Service Act 2011. As outlined in the Act, the police are required to provide assistance to the public when in need, protect life and property, and comply with the constitutional standards of human rights and fundamental freedoms. A question was raised whether intending parties to a demonstration should seek the permission of the police. I think this is a misplaced assertion. The Public Order Act which governs the conduct of demonstrations in Kenya only requires any person intending to convene a public assembly to give the police between ‘three- and fourteen-days’ notice of their intention to demonstrate in which the police should give them the necessary protection. The police may only prevent the holding of a public assembly if the date, time and venue proposed by the organizers are already taken by another person or group. The Act further provides that a public assembly held in violation of its provisions is unlawful assembly.

The police are important in a democracy for the very reason of maintaining law and order. They provide for the rule of law which enhances civic trust and helps maintain social order. Gary T. Max outlines various elements in defining a democratic society as regards to policing in that a democratic police force is a police force which:

• is subject to the rule of law embodying values respectful of human dignity, rather than the wishes of a powerful leader or party;
• can intervene in the life of citizens only under limited and carefully controlled circumstances; and
• is publicly accountable.[26]

Unfortunately, the conduct of the police as recently portrayed and when it comes to manning peaceful demonstrations in Kenya over the years do not meet these three important ingredients, which are conditions inherent to police in every democracy.[27] Our police service has termed political dissent into political crimes and are the weak link to the democratic space the citizens enjoy. Professor Emeritus Gary T Max further goes ahead to note that it is ironic that the police are both major supporters and a major threat to democracy or democratic society today. On the one hand, the police enhance democracy by exemplifying one of its central tenets; the rule of law, while also suppressing crime. On the other hand, however, the police are granted by the government the exclusive power to use force, which can be abused to undermine democracy.[28] In either case, they play prominent role in the successes or failures of democratic societies. With the current political atmosphere in the country, it is paradoxically evident that the Kenyan people need protection something which the good professor terms as “by [the] police” and “from [the] police.”[29] He concludes by noting that while restrictions on police are not a sufficient guarantee to freedom, police whose power is too great is also a danger

In an open democratic society, which respects the dignity of the individual and values voluntary and consensual behavior and the non-violent resolution of conflicts, police, with their secrecy and use of violence, are an anomaly. They are charged with using undemocratic means to obtain democratic ends. Police offer an ethical and moral paradox that will forever make democratic citizens uncomfortable. It is wise that the police which is an independent organ headed by the Inspector-General of the Police, guided by the principles of human rights, accountability and non-partisanship should not succumb to the pressure of the ruling regime to water down the constitutionalism and professionalism which Kenya enjoys under the Constitution. On the use of force by the police, the National Police Service Act provides instances where force can be used and dispersing protestors is not one of them.[30] At the international level, the duty is on the State and its law enforcement agencies to ensure the enjoyment of this right to peaceful assembly.[31] There shall be no use of force. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

IV. Theory: An exegesis – “For the people or with the people?”

At this point, it is imperative that each and every Kenyan sit down and have a candid discussion with themselves on the true nature of the occasional demonstrations that engulfs the country after every election cycle. Certain critical questions need to be asked and answers identified: When we demonstrate, are we really achieving what we are advocating for or are we just piling more pressure on the already worsened economy? Is it for the benefit of all or a selected few? Are there any other means of achieving that which we are fighting for? As have been noted above, Kenya has never been a peaceful country during political demonstrations. Moving forward, it is noteworthy that a permanent solution is found to remedy this situation. That aside, I proceed with the argument that the Opposition has made demonstrations their only way to infiltrate into the government as we shall see from the table below, a quick study into the trend over the years.

As it stands, the countrywide demonstrations have been put on hold to give way to “bipartisan talks” between the two sides of the divide. We should note that the Opposition has made four demands to the government before the commencement of any talks between the two sides, failure to which they shall resume the demonstrations, so they say. The demands include:

1. Reducing the cost of living with the main focus being on the price of unga;
2. Reduction of fuel prices and school fees;
3. Opening and carrying out of a forensic audit of the IEBC servers to determine who won the 2022 elections; and
4. Reinstatement of the Cherera-four to their positions.[32]

While the first two demands are plausible, the last two do not, in any way or the other, mean well for the common mwananchi at this time when the economy is on its deathbed with claims among civil servants that they have not received their March salaries yet. The last two demands are crafted for the politicians own benefit and the Opposition, as wise as it is, knows that the only way they can pressure the government into giving in to their demands is through involving the people and their die-hard supporters through the street demos. Machiavellianism at its peak!

Table 1.1: The trend of the opposition demonstrations and their end results over the years from 1997

A critical analysis of the trend using the above table shows that after every election cycle, one can actually predict the conduct or the next move of the Opposition which is always the calling of demonstrations regardless of whether they challenge the results at the Supreme Court or not. More importantly, the above table shows that in the aftermath of almost all the demonstrations, the Opposition leader or rather the team ends up being in government through appointments or by association and once that is achieved, the citizenry is forgotten about till the next election cycle. Perhaps the 2005 demonstrations were the most genuine one. Perhaps. Indeed, this is a manifestation that Raila is only using these demonstrations to negotiate his way into the government and the current one will be no exception.

As I had earlier noted, this scheme is disguised as a meaningful exercise of the people’s direct sovereign power under Article 1(2) of the Constitution. However, this trend clearly exposes the true nature of the demonstrations. It would not be a surprise to me if the Opposition ends up being part of the government if and when the bipartisan talks are concluded. As a passing comment, I believe that it is not the role of the President to open the servers. The supreme Court had spoken with authority on this and the only recourse is for the Opposition to move back to the Supreme Court for the review of the same. The legal framework for the right to freedom of assembly and demonstrations as set out in the Constitution is impressive when it comes to seeking the attention of the government and to address our honourable grievances, however, I feel that the demonstrations are ineffective when it comes to seeking a rejuvenation of the economy as they only pile more pressure and worsen more the ailing economy.

V. Conclusion and way forward

The promulgation of the Constitution of Kenya 2010 marked a great milestone in Kenya’s constitutional-making process. The Constitution is an important document when it comes to protecting and enhancing fundamental rights and freedoms in particular the right to peacefully and unarmed, assemble, demonstrate, picket and present petitions to public authorities guaranteed under Article 37. This right is exercised under the sovereign power of the people in Article 1 and is one way in which the larger citizenry can communicate with the government. As argued above, this right has been abused by the opposition over the years on the one hand and persistently limited arbitrarily by the government through the police on the other hand. There is a need on the part of the police to understand their roles in demonstrations and cease acting in an arbitrary manner.

It is interesting to note though dramatically that the opposition in most circumstances ends up being part and parcel of the government after the conclusion of demonstrations called in every election cycle. Somehow, we need to put an end to these endless demonstrations, especially as regards disputing the outcomes of elections. I share the same thoughts as Professor Aketch Migai who argues that the presidential system is not suitable for a country like Kenya and proposes constitutional reforms to the effect that a parliamentary system is adopted.[33] The parliamentary system is more inclusive and does away with the “winner-takes-all” metaphor and promotes a better power-sharing formula. Otherwise, political opportunism will water down the very democratic ideals that we boast of as a country.*Law student at the University of Nairobi, Faculty of Law. Researcher with vast interests in Constitutional law, transformative constitutionalism and constitutional reforms, Human Rights law and Public International law. adamsllayton01@gmail.com

[1] James Mbaka, ‘Inside Raila’s Demonstrations Over the Years’ the Star (Nairobi, 20^th March 2023) < https://www.the-star.co.ke/news/2023-03-20-inside-railas-demonstrations-over-the-years/ > Accessed on 13^th April 2023.

[2] James Mbaka, ‘Inside Raila’s Demonstrations Over the Years’ the Star (Nairobi, 20^th March 2023) < https://www.the-star.co.ke/news/2023-03-20-inside-railas-demonstrations-over-the-years/ > Accessed on 13^th April 2023.

[3] James Mbaka, ‘Inside Raila’s Demonstrations Over the Years’ the Star (Nairobi, 20^th March 2023) < https://www.the-star.co.ke/news/2023-03-20-inside-railas-demonstrations-over-the-years/ > Accessed on 13^th April 2023.

[4] Dhruv Vatsyayan and Arpit Saxena, “Understanding the Historical and Constitutional Making of the Right to Protest in India,” Academike, August 25, 2021.

[5] Dhruv Vatsyayan and Arpit Saxena, “Understanding the Historical and Constitutional Making of the Right to Protest in India,” Academike, August 25, 2021.

[6] Dhruv Vatsyayan and Arpit Saxena, “Understanding the Historical and Constitutional Making of the Right to Protest in India,” Academike, August 25, 2021.

[7] Irene Githinji and Dorcas Mbatia, ‘Meru University VC Reinstated, Calm Resumes’ People Daily (Nairobi, 8^th March 2023) < https://www.pd.co.ke/news/meru-university-vc-reinstated-calm-resumes 172195/#:~:text=It%20is%20reprieve%20for%20suspended,the%20government%20reinstated%20him%20yesterday.> Accessed on 13^th April 2023.

[8] Karl Marx and Frederick Engels, The Communist Manifesto 34-35 (Oxford University Press, USA, 1992); Karl Marx and Frederick Engles, The German Ideology 48-49 (Lawrence & Wishart, London, 1974).

[9] Former UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. What are the Rights to Freedom of Peaceful Assembly and of Association < http://freeassembly.net/about/freedoms/ > as cited in Katee Sally Mueni, ‘Under the Political Microscope: The Right to Peaceful Assembly’ A Dissertation Submitted in Partial Fulfilment of the Requirements of the Bachelor of Laws Degree, Strathmore University Law School.

[10] Alan Tuli, ‘The Right and Freedom of Peaceful Assembly: A Short Case Study of Kenya’ < https://www.academia.edu/6539898/The_Right_and_Freedom_of_Peaceful_Assembly_AShort_Case_Study_of_Kenya?auto=download > Accessed on 13^th April 2023.

[11] Article 19, “The Right to Protest: Principles on the Protection of Human Rights in Protests’ 2016.

[12] Article 19, “The Right to Protest: Principles on the Protection of Human Rights in Protests’ 2016.

[13] Malcolm X, ‘The Autobiography of Malcolm X: As Told to Alex Haley’.

[14] Article 19(3)(a).

[15] Article 19(3)(b).

[16] This Article states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. This basically means that once Kenya has ratified a treaty, it does not need an Act of parliament to domesticate it, instead the Courts are bound to apply it directly.

[17] Justifying Limits on Rights and Freedoms, The Inquiry in Context, Australian Law Reform Commission.

[18] See Muthomi Thiankolu, ‘How Kenya Courted a Constitutional  Crisis over Parliament’s Failure to Meet Gender Quotas’ The Conversation (Nairobi, 1^st October 2020) < https://theconversation.com/how-kenya-courted-a-constitutional-crisis-over-parliaments-failure-to-meet-gender-quotas-147145 > Accessed on 14^th April 2023; Ben Sihanya ‘Constitutional Implementation in Kenya 2010-2015, Challenges and Prospects’ <http://www.innovativelawyering.com> Accessed on 14^th April 2023; Speaker of the Senate & Another vs. Hon. Attorney-General & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR where the Supreme Court describes the Constitution as a ‘transformative charter’.

[19] International Commission of Jurists (Kenya) Report ‘Transforming the Kenyan Judiciary after 2010’ < http://www.kenyalaw.org/klr/fileadmin/pdf/downloads/judiciary > Accessed on 14^th April 2023.

[20] Muthomi Thiankolu, ‘How Kenya Courted a Constitutional  Crisis over Parliament’s Failure to Meet Gender Quotas’ The Conversation (Nairobi, 1^st October 2020) < https://theconversation.com/how-kenya-courted-a-constitutional-crisis-over-parliaments-failure-to-meet-gender-quotas-147145 > Accessed on 14^th April 2023.

[21] Joshua Malidzo Nyawa, ‘Freedom of Expression: How Justice Makau Reduced Freedom of Expression to a Cipher’ [The Platform Magazine April Issue] 8.

[22] Article 20(4) of the Constitution.

[23] Joseph Wangui, ‘Court Rejects Mike Sonko’s Bid to Stop Ongoing Azimio Demos’ Nation Africa (Nairobi, 28^th March 2023) < https://nation.africa/kenya/news/court-rejects-mike-sonko-s-bid-to-stop-ongoing-azimio-demos-4175132 > Accessed on 15^th April 2023.

[24] Nation Reporter, ‘Kenyans Describe Officer Who Attacked Journalists as Embodiment of Police Brutality’ Nation (Nairobi, 1^st April 2023) < https://nation.africa/kenya/news/kenyans-describe-officer-who-attacked-journalists-as-embodiment-of-police-brutality-4180834 > Accessed on 15^th April 2023.

[25] HWO Okoth-Ogendo, ‘Constitutions Without Constitutionalism: Reflections on an African Paradox’ “A working paper prepared for the American Council of Learned Societies Comparative Constitutionalism Project, September 1988.” American Council of Learned Societies, New York, [1988].

[26] Gary T Max, ‘Police and Democracy’ in M. Amir and S. Einstein (eds) “Policing, Security and Democracy: Theory and Practice Vol. 2 < https://www.academia.edu/81040943/Police_and_Democracy> Accessed on 15^th April 2023.

[27] Gary T Max, ‘Police and Democracy’ in M. Amir and S. Einstein (eds) “Policing, Security and Democracy: Theory and Practice Vol. 2 < https://www.academia.edu/81040943/Police_and_Democracy> Accessed on 15^th April 2023.

[28] Gary T Max, ‘Police and Democracy’ in M. Amir and S. Einstein (eds) “Policing, Security and Democracy: Theory and Practice Vol. 2 < https://www.academia.edu/81040943/Police_and_Democracy> Accessed on 15^th April 2023.

[29] Gary T Max, ‘Police and Democracy’ in M. Amir and S. Einstein (eds) “Policing, Security and Democracy: Theory and Practice Vol. 2 < https://www.academia.edu/81040943/Police_and_Democracy> Accessed on 15^th April 2023.

[30] Sixth Schedule of the NPSA. The Schedule provides that:

1. A Police Officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result.
2. The force used shall be proportional to the objective achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.

[31] Laws on the Right to Peaceful Assembly Worldwide < https://www.rightofassembly.info/country/kenya > Accessed on 16^th April 2023.

[32] Francis Muli, ‘Raila lists four demands for gov’t before any talks’ People Daily (Nairobi, 16^th April 2023) < https://www.pd.co.ke/inside-politics/raila-lists-four-demands-for-govt-before-any-talks-177503/#:~:text=In%20his%20first%20demand%2C%20Raila,the%20reduction%20of%20school%20fees. > Accessed on 17^th April 2023.

[33] Migai Akech, ‘The Azimio Protests and Reform of Kenya’s System of Government’ Nation Africa (Nairobi, 12^th April 2023) < https://nation.africa/kenya/blogs-opinion/blogs/the-azimio-protests-and-reform-of-kenya-s-system-of-government-4195806 > Accessed on 17^th April 2023.