Can the police ban protests? Constitutional lawyer explains

The ban came a day before the planned protests where protestors, comprising largely of youthful Generation Z, had vowed to march to Uhuru Park and then later to State House while pushing for President William Ruto’s exit. 

In a statement, Acting IG Kanja said that the goons had planned to infiltrate the protests and that a lack of leadership in the Gen Z protests made it difficult for the police to provide security to the demonstrators. 

As a result, he argued that it was necessary to prohibit demonstrations until further notice to ensure public safety. 

Constitutional lawyer Bobby Mkangi told Citizen Digital that the law does not provide the police with the power to ban demonstrations indefinitely. 

However, he argued that the Public Order Act provides two instances when the police can prevent the holding of protests. These include; when there is another demonstration at the same venue or when there is imminent danger to the protestors and the public. 

“The Constitution does not envisage any person or authority to ban a demonstration. The Public Order Act however permits the Police to stop or prevent the holding of a demonstration only in the cases where there is another demonstration planned at the same time (s) and venue (s) or where there is imminent danger to the demonstrators and others. The law however does not permit the Police to issue a blanket and indefinite ban or prohibition of demonstrations, “ Mkangi said. 

The lawyer also said that the law does not require protestors to belong to a specific group or have a leader as long as any person notifies the police of the intention to hold the demonstrations in advance. 

During the third week of June, when the contentious Finance Bill 2024 triggered the protests, activist Boniface Mwangi sent a letter informing the police to provide the required security for the demonstrations. 

“Additionally, The law does not require that those holding a public gathering or procession belong to a specific group or have a leader per se. It permits "Any person..." to notify the Police of the intention to hold the gathering or procession and that the organiser (s) as per the notification to the Police for the meeting/gathering/procession, be present during the duration of the meeting/gathering/ procession in order to assist the Police in maintaining the law and order,” he pointed out. 

IG Kanja’s move to ban the protests in Nairobi was however suspended on Thursday after the High Court issued conservatory orders pending the hearing of a petition filed by Katiba Institute. 

The lobby group argued that the acting IG’s actions were against public interest as it violated Article 38 of the Constitution which provides the right to assemble, picket and demonstrate peacefully. 

“Pending the inter-parties hearing of the Application dated 18/07/2024, a conservatory order be and is hereby issued restraining the Inspector General of Police and other persons serving within the National Police Service, or acting in support of the National Police Service in the discharge of its law enforcement functions, from applying or enforcing the Inspector-General of Police’s impugned decision dated 17/7/2024,” High Court Judge Bahati Mwamuye said in his ruling.