[2025] KEHC 5240 (KLR)

Katiba Institute v Inspector General of Police & another; Law Society of Kenya (Interested Party) (Constitutional Petition E349 of 2024) [2025] KEHC 5240 (KLR) (Constitutional and Human Rights) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 5240 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E349 of 2024

AB Mwamuye, J

February 6, 2025

Between

Katiba Institute

Petitioner

and

Inspector General of Police

1st Respondent

Attorney General

2nd Respondent

and

Law Society of Kenya

Interested Party

Judgment

1. The Petitioner through a Petition dated 18th July, 2024 seeks the following orders:a.A declaration that the Respondent’s actions violate Article 10, 19, 20, 21, 27, 37, 47, 73, 244 and 245 of the Constitution of Kenya.b.A Declaration that the 1st Respondent’s actions of issuing the Press Statement dated 17th July 2024, has violated Articles 10, 19, 20, 21, 27, 37, 47, 73, 244 and 245 of the Constitution of Kenya by suspending a Constitutional Right.c.A Declaration that the office of the 1st Respondent’s press release dated 17th July 2024 is unconstitutional and invalid under Article 2(4) of the Constitution.d.A permanent order of prohibition prohibiting the Respondents from suspending the enjoyment of a Constitutional Human Right, the right to picket and demonstrate under Article 37 of the Constitution.e.Any other prayers this court deems fit.

2. The Petition is founded upon the following grounds: -i.On 18th June 2024 to 16th July 2024, Kenyans have tried to exercise their right to picket and assemble while unarmed under Article 37 of the Constitution protesting the current situation in the country including the passage of the Finance Bill 2024. The Respondents have attempted severally to limit this right.ii.The Petitioner claims that the Respondents resorted to using extra-constitutional measures to curtail the right to picket and assemble such as abduction, use of water cannons, tear gas, live ammunition, rubber or other crude weapons or draconian measures and deploying brute force and violence against persons exercising their Constitutional rights to picket and assemble.iii.The Petitioner further claims that on 14th April 2024, the Inspector General of Police suspended the medics’ right to strike or protest through a press release. This court issued stay orders restraining the Respondents or any other officer from enforcing the Inspector General’s decision in violation of Articles 36, 37 and 41 of the Constitution.iv.The Petitioner contends that the Respondents appeared untouched by the court orders and on 17th July 2024, the 1st Respondent, in a press statement, suspended Article 37 of the Constitution by declaring that no demonstration will be permitted in the Nairobi Central Business District and its surroundings until further notice to ensure public safety.v.The Petitioner contends further that the 1st Respondent has neutered the citizen’s rights in Article 37 and has grabbed himself the sole privilege of determining who does and who does not enjoy the right to assemble, picket and protest under Article 37 of the Constitution. The Petitioner claims that the 1st Respondent has abrogated himself the sole privilege to determine who does and who does not enjoy the right to assemble and has also trampled upon the Bill of Rights and other Constitutional provisions.

3. Despite being served with the Petition, the Respondents did not file any document in Response.

4. The interested party was enjoined on 24th September 2024 after which they filed an Affidavit in support of the Petition sworn by the CEO of the Law Society of Kenya, Florence Muturi, on 16th October 2024. The Interested party affirmed contents of the Petition to which they averred that indeed the 1st Respondent issued a press release on 17th July 2024 which went beyond the legal bounds allowed for the limitation of a right.

5. The Interested Party further stated that the 1st Respondent’s act of refusing the conduct of demonstrations within Nairobi Central Business District and its surroundings is an infringement of the right to equality and freedoms of discrimination as provided under Article 27 of the Constitution.

6. The Interested party prayed that this court intervenes and stops the infringement of the Rights of Kenyans as sought for in the Petition.

Jurisdiction 7. Article 22 of the Constitution of Kenya 2010 grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened.

8. Article 258 of the Constitution also grants every person the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened with contravention.

9. Article 165 (3) (b) of the Constitution vests power to the High Court to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

Analysis and Determination 10. I have very carefully considered the petition and subsequent submissions by respective counsels of the Petitioner and the Interested Party and authorities cited. This Petition challenges 1st Respondent’s actions of issuing the Press Statement dated 17th July 2024, suspending Article 37 of the Constitution by declaring that no demonstration will be permitted in the Nairobi Central Business District and its surroundings until further notice to ensure public safety.

11. I am alive to the fact, that one need not wait for a violation of freedoms of right to be breached to pursue an action under a constitutional petition, for the threatening is sufficient for one to pursue an action in a constitutional petition.

12. The Court reiterated the above position, that a party need not to wait for a violation to occur in order to seek reprieve from the court. In the Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR the court held as follows:“I fully agree with the sentiments of the Bench in the CORD case. A party need not wait for a violation of a right or a contravention of the Constitution to occur before approaching the Court for relief. It appears to me that the intent behind the use of the word “threatened” in both Articles 22 and 258 was to preempt the violation of rights, or of the Constitution. If a clear threat to either is made out, it cannot be properly argued that the petitioner should have waited for the violation or contravention to occur, and then seek relief. It is therefore my finding, and so I hold, that this petition is not premature, and is properly before me.”

13. This court takes judicial notice in light of the decision above and finds that the apprehension of the 1st Respondent to deter future violation is justified.

14. In the absence of an affidavit or any sort of response from the Respondents to controvert the Petitioner’s allegations of fact, I am entitled to proceed on the presumption that the foundational facts upon which this Petition is based are as deposed by the Petitioners and the Interested Party.

15. This Petition brings into focus the question of whether the executive can, in the first place, interfere with certain individual constitutional rights and, if so, the extent to which it may interfere. The constitutional rights brought to the fore are their right to assemble, picket and present petitions to authorities coupled with the right not to be discriminated upon.

16. Article 19(1) of the Constitution states that the Bill of Rights is an integral part of Kenya’s democratic state, and is the framework for social, economic and cultural policies. Clause 3 states that the rights and fundamental freedoms in the Bill of Rights –a.belong to each individual and are not granted by the state;b.do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; andc.are subject only to the limitations contemplated in the Constitution.

17. Article 19 (2) outlines rights that are a benchmark for state’s social, economic and cultural policies. These rights are recognized and protected because they are the only means by which the dignity of the individual and communities can be preserved.

18. The right to assemble, demonstrate, picket and present petitions to the public authorities is an example of such rights thus a constitutional guarantee. It is one of the fundamental rights and freedoms under the Constitution. Article 37 provides;“Every person has the right peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

19. Under Article 20(1) of the Universal Declaration of Human Rights, everyone has the right to freedom of peaceful assembly and association. Kenya is also state party to the International Covenant on Civil and Political Rights whose Article 21 states that the “right of peaceful assembly shall be recognized.” Article 11 of the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter also states that every individual shall have the right to assemble freely with others.

20. In the case of Ferdinand Ndung’u Waititu v Attorney General and 12 Others [2016] eKLR, the court held as follows:“Besides guaranteeing the right to assemble, demonstrate, picket and petition, Article 37 is itself an imperative rights article and its import is that it brings together other rights critical in any free democratic society. The article inherently invites the freedom of expression and opinion as well as the freedom of association. In their course of their demonstrations, persons are bound to assemble and associate and likewise, in the course of picketing, the picketers are simply bound to express themselves, their common views and opinions.”

21. It is however important to note that rights under Article 37 are not absolute and may be limited by law. It is a constitutional imperative that an individual’s right must and ought not to be interfered with and may only be limited as provided by law.

22. Article 24 of the Constitution of Kenya, 2010 lays out the circumstances under which these limitations may apply. It states as follows:“24. (1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-a.the nature of the right or fundamental freedom;b.the importance of the purpose of the limitation;c.the nature and extent of the limitation;d.the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; ande.the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.2. Despite clause (1), a provision in legislation limiting a right or fundamental freedom-a.in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; andb.shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; andc.shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.3. The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied…”

23. The above provision, establishes the criteria for limiting any constitutional right and urged that a right or fundamental freedom in the Bill of Rights can be limited only by law, in pursuit of a legitimate objective and only to the extent that the limitation is necessary.

24. The Supreme Court in the case of Kandie v Alassane BA & Another (Petition 2 of 2015) [2017] KESC 13 (KLR ) while discussing Article 24 of the Constitution held as follows:“13. The test to be applied in order to determine whether a right can be limited under Article 24 of the Constitution, was the reasonable and justifiable test, which must not be conducted mechanically. Instead, the court must, on a case-by-case basis, examine the facts before it, and conduct a balancing exercise, to determine whether the limitation of the right was reasonable and justifiable in an open and democratic society. The insertion of the word ‘including’ in Article 24 indicated that the factors to be considered while conducting the balancing act were not exhaustive but they were a guide to the main factors to be taken into account in that consideration.14. Before applying the reasonable and justifiable test, the court would first have to determine whether a right was limited under a particular law…15. In assessing whether the limitation of a right was reasonable and justifiable, the court would consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual did not prejudice the rights of others, as well as the relationship between the limitation and its purpose, and whether there were less restrictive means to achieve that purpose.”

25. In assessing whether the limitation of a right is reasonable and justifiable, the Court ought to consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation and the fact that the need for enjoyment of the right by one individual does not prejudice the rights of others, as well as the consideration of the relationship between the limitation and its purpose.

26. I am also guided by the Canadian case of R v Oakes [1986] 1SCR 103 [69]-[70] where the court stated:“Dickson CJ said that to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be justified.a.The first criterion concerned the importance of the objective of the law. First, the objective, which measures responsible for a limit on a constitutional right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom.’ The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to free and democratic society do not gain protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.b.Secondly, the means chosen for the law must be ‘reasonable and demonstrably justified’, which involves ‘a form of proportionality test’ with three components: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in his first sense, should impair ‘as little as possible’ the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of sufficient importance.”

27. From the decision above, in determining whether a limitation is justified, the following questions must be answered; what is the purpose of the limitation, how important is it, what is the relationship between the limitation and its purpose and finally are there less restrictive means to achieve the purposes intended?

28. Article 24 (3) of the Constitution further provides that the onus of proving that a limitation on a right or freedom is reasonable and demonstrably justified in an open and democratic society lies with the Respondent thus the Respondent bears the burden of satisfying this court that limitation was first, provided by law; second, it was intended to serve a legitimate aim; and third, it was necessary in an open and democratic society.

29. Despite the limitation, it is not implied that the executive has power, independent of statute, to act in derogation of the rights of citizens. In light of the above provisions, not only must the exercise of executive powers be authorized by law but must also keep strictly within the scope of that authority.

30. Kenya being a democratic state with a democratically elected leadership, the citizens have a democratic right to discuss affairs of their government and leadership because their rights are guaranteed by the Constitution. It must be appreciated that only through public criticism helps public officers understand the feelings of citizens make their leaders may act to address the criticism directed to it.

31. In the case of Edmonton Journal v Alberta {1989}45 CRR 1, the Supreme Court of Canada (Corey J), underlined the importance of freedom of expression when it states that;“It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.”

32. In the Malawian case of Harry Nakandawire & Another, Criminal case number 5 of 2010 also held as follows:“It must not be forgotten that our constitution guarantees freedom of speech/expression, opinion, conscious and association. Freedom of speech/ expression should not, in our view, be restricted to speaking about only those things that delight the power that be. It must extend to the freedom to speak about even those things that have the capacity/ potential to displease, indeed annoy. Persons, institutions should not therefore be barred from expressing themselves on any issue merely because doing so will discomfort certain quarters for the remedy in such instances, is not to bar expression but to allow those offended to pursue civil suits… people must be free to hold and impact even unpopular and for minority opinions…”

33. I am also in agreement with the findings in the case of South African Transport and Allied Workers Union and Another v Garvas and others [2012] ZACC 13 where the South African court held: “The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give a voice to the powerless. This includes the groups that do not have political or economic power, and other vulnerable persons. It provides an outlet for their frustrations. This right will in many cases, be the only mechanism available to them to express their legitimate concerns. Indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms.”

34. The limitation of human rights and freedoms does not give any state organ the right to curtail such rights. The people in a democratic country have the right to raise their voice against injustice and even express their resentment against the action of the government. The government should respect and even encourage exercise of such rights.

35. It is the duty of the state to aid the exercise of right and freedom of speech in its comprehensive state and not to frustrate exercise of such rights by exercising its executive or legislative powers or taking actions in violation of rights and freedoms of citizens in the name of reasonable restrictions.

36. This being a democratic society, limitation of a right must not only be reasonable but also justified by the party seeking to limit the right. Such limitation must strike a balance between the provisions limiting the right and Article 24 of the Constitution.

37. The principle enunciated above is that constitutionally guaranteed rights should not be limited except where the limitation is reasonable, justifiable and the objective of that limitation is intended to serve the society. The standard required to justify limitation, is high enough to discourage any limitation that does not meet a constitutional test and that limitation to a right is an exception rather than a rule.

38. The Respondents herein have not sufficiently demonstrated that the limitation through the 1st Respondent’s press statement was justified.

39. The Honourable Court in the case of Moise v Greater Commission Transitional Local Council; Minister of Justice and Constitutional Development, intervening (Women’s Legal Centre as Amicus Curiae) 2001 (4) SA 481 CC stated:“The respondents have been found woefully wanting on this front. They have not submitted any evidence or material of whatever nature in justification of the limitation in question. That being the case, the conclusion is, in my view, inescapable that the respondent have failed to satisfy this court that the restrictions and limitations imposed on the applicants’ freedom of speech or expression are either reasonable or justifiable. Besides, the deeming provisions of subsection 3 are plainly contrary to the constitutionally entrenched right of being presumed innocent until proven otherwise.”

40. Similarly, in the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & others [2015] eKLR the court relied on the case of S v Zuma & Others (1995)2 SA where the court held “ A party alleging violation of a constitutional right or freedom must demonstrate that the exercise of a fundamental right has been impaired, infringed or limited. Once a limitation has been demonstrated, then the party which would benefit from the limitation must demonstrate a justification for the limitation. As in this case, the State, in demonstrating that the limitation is justifiable, must demonstrate that the societal need for the limitation of the right outweighs the individual’s right or freedom in question.”

41. The jurisprudence emerging from the above decision is that it is the duty of the state to justify the derogation of a constitutional right. In the present case, the state has not even in the remotest sense, attempted to show that the limitation was reasonable and justifiable as required by Article 24(3). No material or policy considerations were placed before this court to justify the limitation. The right to assemble, demonstrate, picket and petition a public authority being a constitutional right, can only be limited in accordance with the Constitution itself, and where it is limited by statute, that statute or statutory provision must meet the constitutional test of reasonableness and justifiability.

42. It is prudent however to note that the Constitution has provided claw-backs on Article 37 that demonstrators, picketers and petition -presenters must do so peaceably and unarmed. Assemblies, picketing and demonstrations which are not peaceful are excluded from protection of Article 37 of the Constitution. 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 is an essential feature in a democratic society that ought to be protected especially where it is shown that they often start as peaceful ones. The focus should not be on the fact that they turn violent but rather how to ensure that they do not turn violent without violating and infringing individual rights.

43. 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 Article 37 Rights.

44. Section 10 (4) of the National Police Service Act, cap 84 which has been enacted to give effect to Articles 243, 244 and 245 of the Constitution states that in the performance of functions set out under the Constitution, the National Police Act or any other law, the Inspector General shall not just have all the necessary powers for the performance of such functions but, in exercising them, he is under obligation to uphold the national values, principles and objects set out in Articles 10, 232 and 244 of the Constitution.

45. Amongst the national values and principles of governance in Article 10 are, of course, the rule of law, democracy, human dignity, human rights and non-discrimination. Article 232, on the other hand, is about values and principles of public service and they include accountability for administrative acts; and finally, Article 245 is with respect to the command of the National Police Service and it states, inter alia, that the Inspector General shall, among other things exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.

46. I have gone through the Affidavit sworn by Emily Kinama in Support of the Petition dated 18th July 2024 and established that the Affidavit gives a detailed narration of the threat by the 1st Respondent to violate the rights and freedoms of the public.

47. In the press release, the Inspector General states: “…As a result, no demonstrations will be permitted in the Nairobi Central Business District and its surroundings until further notice to ensure public safety.” This is a clear threat to the violation and infringement of Article 37 of the right to assembly and picket peacefully.

48. In the holding by Tambala J (as he then was) in the Malawian case of National Consultative Council v The Attorney General Civil Cause 958 of 1994 stated: “There is need to strike a balance between the needs of society as a whole and those of individuals. If the needs of society in terms of peace, law and order, and national security are stressed at the expense of the rights and freedoms of the individual, then the Bill of Rights contained in the Constitution will be meaningless and the people of this country will have struggled for freedom and democracy in vain. In a democratic society, the police must sharpen their skills and competence. They must be able to perform their main function of preserving peace, law and order without violating the rights and freedoms of the individuals. That is the way they can contribute to the development of a free state. Matters of National Security should not be used as an excuse for frustrating the will of the people expressed in their constitution.”

49. The suspension of rights without due process, such as consultation with relevant stakeholders or obtaining necessary judicial approvals, raises concerns about the legitimacy and fairness of the administrative action. Due process requires that any action affecting constitutional rights must be carried out in a manner that follows established legal procedures. This includes providing notice, the opportunity to be heard, and a fair and impartial decision-making process. The unilateral suspension of rights by the Inspector -General bypasses these procedural safeguards. The principles of due process is fundamental in ensuring fairness and justice in administrative and judicial actions.

50. The Petition herein therefore succeeds. The Petitioner has succeeded to prove that the 1st Respondent’s actions on 17th July 2024 amount to threat to violation and infringement of the Constitutional Rights of the public to assemble and picket in accordance to Article 37 of the Constitution 2010.

51. Consequently, the following final orders hereby issue: -a.A declaration be and is hereby issued that the proposed limitation of the right to exercise Article 37 rights in the subject area was a blanket, omnibus, and overly broad one, and thus it did not meet the requirements of Article 24 of the Constitution.b.A declaration be and is hereby issued that the 1st Respondent’s press statement dated 17th July 2024 was and is unconstitutional and invalid to the extent that it restricted and restricts any and all demonstrations in the Nairobi Central Business District and its surroundings until further notice and to the extent that it required and requires any and all protests, demonstrations, picketing actions, and public gatherings to have a designated leader(s) to coordinate, collaborate, and cooperate with the Police as a mandatory prerequisite.c.An order of certiorari be and is hereby issued quashing the 1st Respondent’s Press Statement dated 17/07/2024. d.A declaration be and is hereby issued that whereas the 1st Respondent’s Press Release dated 17/07/2024 was unconstitutional and invalid as per (a) and (b) above and was quashed as per (c) above, the 1st Respondent’s actions in the issuance and implementation of the impugned press release did not however raise to the high standard required for an adverse finding by this Court on any of the adverse finding by this Court on any of the grounds arising under Article 245 (7) of the Constitution.e.This being public interest litigation, each Party shall bear its own costs.

DATED, SIGNED, AND DELIVERED VIRTUALLY THIS SIXTH DAY OF FEBRUARY 2025. BAHATI MWAMUYEJUDGE