In keeping with my stated respect for the rule of law, I must admit that a few things about yesterday's demonstration and its aftermath do not sit well with me.
First, the careless disregard exhibited by the protesters of the legal requirement to inform the police before holding a public demonstration. Today's Daily Nation quotes one of them, Ms Ann Njogu from Creaw, admitting to the police yesterday that “some matters were urgent and we are angered to an extent of forgetting the need to notify you”. There can be no excuse for such an oversight and the police were well within their rights to declare it an illegal gathering and to order them to disperse. It is the height of hypocrisy to demand that the government comport itself within the bounds of law while the very activists demanding this are busy ignoring its provisions. That said, I still maintain that the subsequent police reaction (lobbying tear gas canisters etc.) was excessive and unwarranted. Furthermore, locking up people who clearly pose no threat to the public is an abuse of police powers. It would have sufficed to get them to record statements and order them to appear before some magistrate the next day.
Secondly, the Nation article also reports on Cabinet Minister Charity Ngilu successfully abetting the escape of Ms. Njogu from police custody. Again, this is a flagrant violation of our statutes and does much harm to the cause Ms. Njogu and her fellow protesters were fighting. Just because one disagrees (as I do) with the premise of their arrest does not suddenly relieve one of the responsibility to act in a lawful manner. I hope to see the Minister for Health presently arraigned in court along with Ms. Njogu.
First, the careless disregard exhibited by the protesters of the legal requirement to inform the police before holding a public demonstration. Today's Daily Nation quotes one of them, Ms Ann Njogu from Creaw, admitting to the police yesterday that “some matters were urgent and we are angered to an extent of forgetting the need to notify you”. There can be no excuse for such an oversight and the police were well within their rights to declare it an illegal gathering and to order them to disperse. It is the height of hypocrisy to demand that the government comport itself within the bounds of law while the very activists demanding this are busy ignoring its provisions. That said, I still maintain that the subsequent police reaction (lobbying tear gas canisters etc.) was excessive and unwarranted. Furthermore, locking up people who clearly pose no threat to the public is an abuse of police powers. It would have sufficed to get them to record statements and order them to appear before some magistrate the next day.
Secondly, the Nation article also reports on Cabinet Minister Charity Ngilu successfully abetting the escape of Ms. Njogu from police custody. Again, this is a flagrant violation of our statutes and does much harm to the cause Ms. Njogu and her fellow protesters were fighting. Just because one disagrees (as I do) with the premise of their arrest does not suddenly relieve one of the responsibility to act in a lawful manner. I hope to see the Minister for Health presently arraigned in court along with Ms. Njogu.
4 comments:
Gathara, the Minister will not be arraigned in court simply because justice is served on different plates. I completely agree that it is irresponsible for an activist to declare that they were so angered to the extent of not taking legal precaution for their demonstration.
Their cause no matter how important is now dealt a heavy blow. And how comes no MP has opposed this measure to increase their send off package, wouldn’t it be an easy “I am with the people” strategy to win votes for next elections??
what is a "gathering",legally, so that we can determine when one is formed? having said that, when does my constitutional right to express myself get subservient to police proclamation? should the rights to dissent, be curtailed by interested parties such as the police of the current gava? i hold that the proclamation of an "illegal gathering" is not in public interest, in so much as the exercising the right of expressing oneself. in summarry, i think such police proclamation is iteslf an order against constititional rights, and aslo easily indefensible. it ought to not be enforced, as it clearly does not advance democratic space.
Your constitutional right of assembly is set out in Section 80 of the Constitution which reads in part thus:
80. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
(a) that is reasonably required in the interests of defense, public safety, public order, public morality or public health;
....
and except so far as that provision or, as the can may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Now, surely the law mandating that the Police be informed (and note that this does not require one to get a licence) is in the interests of public order. After all, demonstrations do cause inconvenience to others who may not be participating and the police are needed to perform functions such as redirecting traffic and ensure the security of the protesters.
Further it is a mis-statement of the facts to say that the right to dissent was curtailed. The police were clear that it was not the views of the marchers which occasioned the stopping of the demo but rather the organisers failure to abide by the law. The democracy you claim to champion only thrives when there is rule of law. Which means obeying even those laws we do particularly agree with. Otherwise, petition your lawmakers to change them or get the courts to strike them off the books.
Finally, who is to decide what is and what is not in the public interest? Who therefore decides what laws should or should not be obeyed? On what basis do you arrogate to yourself these responsibilities? And on what basis would you deny them of the thief who decides that it is in the public interest to enrich himself?
I am still npot conmvinced that sec82(2)(a) was contravened. failing to inform the police...does not mean that it was contravened. and becasue a constituent right was enjoyed,...withouit contreveneing it, it should in effect be against one's constitutional rights, for the police to merely say that they were not informed, and THEREFORE, curtailing the rights to expression can be justified. i hold that, in fact, the police had no "reasonably justifiable" cause, as demanded by law, to have then abrogated themselves the right to deny citizens the right of expression. i further hold that while informing the police is merely procedural matters, fauilure to do so, CANNOT be "reasonably justifiable" cause to take away that right, of freedom of expression. i do sympathize with your penchant for sticking to the letters, but in this instant i maintain that "not informing the police" shopuld have been an offence that is not criminal, the police action was an affront to our constitutional order and rights, and must have been highly condemned. if anything, this is a section 2A type of law that must be repealed ( i mean, the part that allows police to declare a gathering or demo illegal, without the police producing a warrant from a court of law).
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