But here we had a
problem. All over media, coverage was about planned demos across the country on that very day. The
meeting didn’t happen! Exactly at 05.58 am, my phone buzzed.
I received information that road transport was curtailed due
to the day’s events - (upcoming protests,
police preparations and
road closures).
In short, I spent
the day, regrettably, in the house with no plan for the day. And with
nothing on my hands, I decided to laze around and follow the day’s events on television. With remote in hand, I
kept on flicking channels, consuming as much as I could, as I also remotely worked.
And I learnt a lot
from the coverage. On a national TV, I closely followed the panel
discussions on the day’s events. But one of them stood out.
The afternoon panel
moderated by a top journalist was interesting. We had three youthful panelists, all offering
perspectives on demos generally. We had a civil rights lawyer, a human rights agency official and a
youth think tank dialogue convener.
Whereas the convener came out more balanced, the civil
rights lawyer pushed from the critical left perspective. And the right’s agency official seemed more
inclined towards the leftist corner, too, albeit with some give and take.
The moderation by
the journalist was superb, in my estimation. It was well balanced and professional. Narrowing the discussion down to key
takeaways, one area of contention revolved around Article 37.
It guarantees every person the right to peaceful and
unarmed assembly, demonstration, picking and presenting petitions to
authorities. It can be legally limited if restriction deemed justifiable and
reasonable in a democratic society.
The positions held
by the panelists on the topic were conflicting. The convener opined that demonstrations
don’t have to be contentious and the only way to engage with government and call
attention to issues, as other inclusive means are available.
The critical left,
however, posited that demos were of great necessity, a constitutionally guaranteed right that remained
non-negotiable. And emphasised that this right was unequivocal to the extent that
notification is only a choice invoked by the demonstrators - not of necessity!
And this, unfortunately,
is the narrative that is espoused by many from the critical left side in general. Yet those on the conservative right
of this debate hold otherwise: that, yes, the constitution proffers rights.
But many
of these rights, including Article 37, aren’t absolute as ‘fallaciously’ argued - and so limited by design of the
same constitution.
This school of
thought holds that the few categorical rights, freedoms and liberties proffered constitutionally are clearly stated,
but with the rest left under the application ambit of subordinating statutes for
regulation.
In this category is
where Article 37 falls. And it’s why the Public Order Act (Poa), a creation of
the constitution for regulating and enabling Article 37, becomes of the
essence.
For the simple reason, and to the
extent that rights to demonstrate and picket are guaranteed, the rights of
other citizens’ enjoyment
of their lives, as equally envisaged by same constitution, are also guaranteed.
There must therefore be a
bulwark between these competing interests to ensure non-infringement and
peaceful coexistence.
Regulation of
public order in the exercise of rights of Article 37 comes into play.
Notification is the first action to
be fulfilled, mandatorily, and to an OCS (the regulating officer).
This is a fundamental non-negotiable
requirement, not just a choice to cherry-pick by demo planners. And why so? Because there may be
other subsisting circumstances that may curtail that enjoyment in the public interest, or
the national security concerns of the state.
And why are these
two interests important? Because they’re more fundamental to any other individual rights or interests.
They
form the fabric of the state. The state exists as a basic design of a social contract between the
people and the state, hence, the import of their collective interests through the state’s
representation, not just of a select few out of choice or convenience.
And at the apex is
national security, which assigns equal rights to all through equitable
protection of lives and property - the noblest aspirations by far
and for all.
Beyond
notification, which is for police regulatory purposes (and made to a regulating officer, which may be denied under
the Poa), this moves further right into the conduct of the demos themselves, vis-a-vis the
stated objectives of such gatherings.
Will police be mere observers in a process that deviates
from its initial stated course, or in contravention of the Poa, hence threatening public peace,
tranquillity and security of all? Not at all.
This is where an
escalation of events from intended objective/s occur, hence, criminality through chaos. And at every such
deviation from objectives, defiance of authority and also of the law ¾ the norm and what is expected
¾ police will do what they have
to do: react in a countermeasure
fashion, and within the stipulations of the very law, with a focus on
preserving baseline peace and
security.
And unfortunately,
this event escalation oftentimes ends up with the use of force, as a countermeasure, which could have been
avoided in the first instance had compliance to regulation of Article 37 been
observed.
And on this, the question should therefore be whether the use of force was justifiable or
proportionate, or not, based on prevailing circumstances - not why police used
force.
Therefore, to
properly appreciate the rights, freedoms and liberties enshrined in the constitution,
conservatively, we must be deliberate, holistic and not economical in our
options of what works for
our corner, or not. That’s brutal objective honesty. And the starting place is
an appreciation of the
state, statehood and national security.
Many classical
thinkers have toyed with this large question before. Hobbes, in his Leviathan book, rooted for a strong government
in which citizens donate their collective will through a social contract.
This is so since a
state’s first and foremost - and its fundamental objective - is to provide security, preserve
peace and assure the people of social order.
This is how the
police and other armed agencies come into play and why they matter - as the donees or legal recipients of
the state’s instruments of violence for the good of the collective realm, the collective
good.
Therefore, police
aren’t designed to be mere bystanders on security-related matters, but active participants and levers - if not guarantors or
regulators - utilising the
very powers and tools donated to them by
the collective citizenry for their overall security and safety needs.
And if they can’t
rise to this high ideal of agency responsibility to regulate unlawful assemblies on behalf of the
citizenry, they will paradoxically be accused of abdication of their fundamental duty to state and
the people.
The writer the director-general of Kenya Coast Guard Service and former coordinator - Serious and Organised Crime team, UN Police headquarters
