Behind the Protests Mask in Kenya, Extrajudicial killings, Abductions and Court Sanctioned Militarization of the Freedom to Demonstrate

On 25^th June 2024, the world watched in admiration as thousands of Kenyan people led by the youths, especially Generation Z ‘Gen Z’, staged spectacular protests against the government’s Finance Bill 2024. Unlike previous protests in Kenya, which are traditionally elite-led, the ‘Gen Z’ demonstrations espoused no political, tribal or class leaning and were supported by the majority of Kenyans, including religious institutions, often seen as strong supporters of the Ruto presidency. The people accused the executive and parliament of breaching the social contract by, among other issues, bad governance, condoning massive corruption in government and introducing draconian tax measures that have led to an exponential rise in the cost of living and an estimated 67% youth unemployment.[1]

However, on Tuesday, 25^th June 2024, the admiration turned into horror when the protestors, in an unprecedented move, accessed parliament buildings in Nairobi and the Kenyan police responded with brutal force, shooting at free will with live bullets and tear gas against unarmed protestors. Protestors and bystanders were arbitrarily arrested and forced into police vehicles. Violence escalated in many parts of Kenya. In Nairobi, ununiformed police officers were captured by media cameras, injuring and shooting at protestors.[2] In the aftermath, dead bodies lay in the streets, hundreds of people sustained gunshot injuries, scores of youth leaders were abducted, tortured and held incommunicado, and many others were detained in police stations. Media reports estimate that over 50 people died.[3] Children were not spared! In Rongai, Kajiado county, a 12-year-old boy was shot 8 times.[4]

As the horrific violence continued into the night, the president held a press conference where he described the protests as ‘treasonous’ and vowed to hit back at the protestors. A ‘security emergency’ was declared in Kenya vide gazette notice No. 7861, authorizing the deployment of the Kenya Defense Forces (KDF), ostensibly to support the police to ‘restore normalcy in the country’. The following morning, the National Assembly approved the deployment post facto, prompting the Law Society of Kenya (LSK) to lodge an urgent application in court to challenge what they termed as the ‘illegal, arbitrary, and unconstitutional’ deployment of KDF.[5]  The LSK argued that the police are better equipped to deal with internal security matters such as civilian protests, and the prevailing deployment was a total limitation of the Kenyan people’s fundamental right to peacefully assemble, demonstrate, picket and petition. The court declined to stop the deployment and instead ordered the executive to publish the terms of the deployment, duration and coverage. Swiftly, the government published a gazette notice confirming a whole country’s military coverage and terms of engagement as per the law. The deployment would ‘continue until normalcy is restored’.[6]

The ambiguity of the court’s ruling has engendered an open-ended military takeover of protest policing without sufficient safeguards for the protection of civilians and accountability on the part of the army. What constitutes normalcy, and who decides? Further, in response to the court’s order for the executive to publish the terms of engagement, the executive merely restated the provisions of the Constitution and the Kenya Defence Forces Act without specifying the substantive and procedural parameters of the engagement, thereby failing to satisfy the strict threshold imposed by Article 24 of the Constitution on limitation of rights. The compound effect of this limitless exercise of discretion by the executive is a court-sanctioned militarization of the freedom to assemble, demonstrate, picket, and petition.[7]

Kenya boasts of a progressive Constitution with a comprehensive bill of rights and direct application of the general rules of international law and treaties that Kenya has ratified.[8] Besides Article 37, Article 33 protects the freedom of expression, while Article 49 proscribes holding arrested persons incommunicado and requires them to be produced in court within 24 hours except when the arrest happens on weekends or public holidays. Further, the law requires police officers to be in uniform and publicly display their names and service numbers when effecting arrests.[9]

The right to freedom from torture, cruel, inhuman or degrading treatment or punishment is a non-derogable right under Article 25, while the right to life is protected by Article 26 and can only be limited through the law. In this regard, the Criminal Procedure Code and the National Police Service Act require the police to use reasonable force when making an arrest and only use a firearm to protect against an imminent threat of death or serious injury, and even then, they must first exhaust all de-escalatory approaches and issue appropriate warnings.[10] In context, even when protesters stopped being peaceful, therefore limiting their right to peacefully assemble and protest, they retained other rights, moreso the right to life. After all, parliament buildings are public properties that all Kenyans should be able to access freely. It goes against the basic intrinsic values of humanity to kill people in order to preserve property, whether critical infrastructure or not.

In conclusion, this post posits that extrajudicial killings and injuring of unarmed civilians exercising their right to demonstrate, abductions and torture, illegal detainment of protestors and limiting of internet access on social media platforms (including X, WhatsApp, Instagram and TikTok), are inexcusable affronts to the Constitutional guarantees that straddle the social contract between the people of Kenya and president Ruto’s government. As Kenyans brace themselves for more protests in the coming days, a critical question lingers: will the military, like the police, exercise restraint and not use unnecessary or disproportionate force on protestors?

[1] https://www.fke-kenya.org/policy-issues/youth-employment, accessed 01.07.2024.

[2]  Brian Kimani, ‘Uproar as Kenyans Expose Police Officer who Shot at Peaceful Crowd’ Citizen Digital (Nairobi, 28 June 2024) https://www.citizen.digital/news/uproar-as-kenyans-expose-police-officer-who-shot-at-peaceful-crowd-n344845 accessed 01.07.2024.

[3] Nation Tean, ‘Conflicting death toll, pain and agony as families search for their loved ones’ Nation Media Group (Nairobi, 27 J une 2024)https://nation.africa/kenya/news/conflicting-death-toll-pain-and-agony-as-families-search-4671146, accessed 01.07.2024.

[4] https://www.kenyamoja.com/video/12-year-old-boy-shot-eight-times-during-ongata-rongai-anti-finance-bill-protest-tv-47-877035, accessed 01.07.2024.

[5] Law Society of Kenya -v- Attorney General and Others, Petition No. E307 of 2024. See Articles 58 , 132 (4) and 241 (3) (c) of the Constitution of Kenya on instances and procedure for declaration of state of emergency.

[6] Gazette Notice No. 7868.

[7]  Constitution of Kenya 2010, Article 37.

[8] Ibid, Article 2 (5) and (6). Kenya has ratified all major international and regional human rights treaties.

[9] National Police Service Act, Sixth Schedule, Part A, Par 10.

[10] Criminal Procedure Code, Section 21(3); National Police Service Act, Sixth Schedule, Part B (1), (2).