The Delicate Balance: Navigating the Interplay between the Right to Assembly and Constitutional Limitations in Kenya’s Legal Framework
The Mt Kenya Times 
Reject finance bill protest
By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The tension between these two articles has been the subject of numerous legal battles and scholarly debates. In the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others [2015] eKLR, the High Court grappled with the constitutionality of certain provisions in the Security Laws (Amendment) Act that restricted the right to assembly.
- The court, in its wisdom, struck down several provisions as unconstitutional, emphasizing that any limitation on the right to assembly must be narrowly tailored and serve a compelling state interest.
- This ruling underscores the judiciary’s role in safeguarding constitutional rights while recognizing the state’s legitimate security concerns.
Within the domain of constitutional law, few issues are as contentious and nuanced as the balance between fundamental rights and their necessary limitations. The Kenyan Constitution of 2010, hailed as one of the most progressive in Africa, enshrines a robust Bill of Rights that includes the freedom of assembly, demonstration, picketing, and petition under Article 37. However, this right is not absolute and must be considered in light of Article 24, which provides for the limitation of rights under certain circumstances. This paper aims to explore the intricate relationship between these two constitutional provisions, examining their implementation, interpretation, and the challenges that arise in their practical application within the Kenyan legal and social context.
Article 37 of the Kenyan Constitution guarantees that “every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” This provision is a cornerstone of democratic participation, enabling citizens to express their grievances, advocate for change, and hold their government accountable. As noted by constitutional scholar Yash Ghai in his seminal work “Kenya’s Constitution: An Instrument for Change” (2018), this right is “essential for the functioning of a vibrant democracy and the protection of minority interests.” The inclusion of this right in the Constitution reflects Kenya’s commitment to international human rights standards, aligning with Article 21 of the International Covenant on Civil and Political Rights, to which Kenya is a signatory.
However, the exercise of this right is not without boundaries. Article 24 of the Constitution provides a framework for the limitation of rights and fundamental freedoms. It stipulates that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society. This provision sets out specific criteria that must be met for any limitation to be considered valid, including the nature of the right, the importance of the purpose of the limitation, and the relation between the limitation and its purpose. As Justice Willy Mutunga opined in the landmark case of Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others [2013] eKLR, “The limitations clause in Article 24 is not a carte blanche for the state to restrict rights but a carefully calibrated mechanism to ensure that any restrictions serve legitimate aims and are proportionate.”
The tension between these two articles has been the subject of numerous legal battles and scholarly debates. In the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others [2015] eKLR, the High Court grappled with the constitutionality of certain provisions in the Security Laws (Amendment) Act that restricted the right to assembly. The court, in its wisdom, struck down several provisions as unconstitutional, emphasizing that any limitation on the right to assembly must be narrowly tailored and serve a compelling state interest. This ruling underscores the judiciary’s role in safeguarding constitutional rights while recognizing the state’s legitimate security concerns.
The implementation of Article 37 in practice has often been fraught with challenges. Despite its constitutional protection, the right to assembly has frequently been curtailed through various means, including the use of excessive force by law enforcement, arbitrary arrests, and the invocation of colonial-era public order laws. The Kenya National Commission on Human Rights, in its 2017 report “The Right to Peaceful Assembly: A Checklist for Kenya,” documented numerous instances where the right to assembly was infringed upon, highlighting the gap between constitutional guarantees and their practical realization. This discrepancy raises critical questions about the effectiveness of constitutional protections and the need for comprehensive legislative and policy reforms to ensure full compliance with Article 37.
The judiciary has played a crucial role in interpreting the scope and limitations of the right to assembly. In the case of Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others [2014] eKLR, the Court of Appeal emphasized that any limitation on constitutional rights must be proportionate and narrowly tailored to achieve a legitimate aim. This principle of proportionality, derived from international human rights jurisprudence, has become a key test in assessing the validity of restrictions on the right to assembly. As noted by legal scholar Migai Akech in his article “Administrative Law and Judicial Review in Kenya” (2016), “The proportionality test provides a structured approach to balancing competing rights and interests, ensuring that limitations on rights are not arbitrary or excessive.”
The intersection of Article 37 and Article 24 raises important questions about the role of the state in facilitating and regulating public assemblies. While the state has a positive obligation to protect and enable the exercise of the right to assembly, it also has a duty to maintain public order and protect the rights of others. This dual responsibility requires a delicate balancing act, as highlighted by the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association in his 2016 report on Kenya. The report emphasized the need for clear guidelines and training for law enforcement officials to ensure that any restrictions on assemblies are applied in a manner consistent with international human rights standards and Kenya’s constitutional framework.
The ongoing debate surrounding these constitutional provisions reflects broader societal tensions and the evolving nature of democratic participation in Kenya. As the country continues to grapple with issues of governance, corruption, and social inequality, the right to assembly remains a vital tool for civic engagement and political expression. However, the frequent invocation of security concerns and public order as justifications for limiting this right highlights the ongoing challenges in striking the right balance. Scholar Karuti Kanyinga, in his book “Kenya: Democracy and Political Participation” (2014), argues that “the realization of the right to assembly is a litmus test for Kenya’s democratic maturity and the government’s commitment to constitutionalism.”
Looking forward, several key issues require attention to ensure the effective implementation of Article 37 while respecting the limitations clause in Article 24. First, there is a need for comprehensive legislative reform to align existing laws with the Constitution’s progressive spirit. This includes revisiting colonial-era public order laws that are often used to restrict assemblies. Second, there is a pressing need for enhanced training and accountability mechanisms for law enforcement officials to ensure that they respect and protect the right to assembly. Third, the judiciary must continue to play a proactive role in interpreting these constitutional provisions, developing a robust jurisprudence that provides clear guidance on the permissible scope of limitations.
In conclusion, the interplay between Article 37 and Article 24 of the Kenyan Constitution exemplifies the complex challenges inherent in balancing fundamental rights with necessary limitations in a democratic society. As Kenya continues its journey towards consolidating its democratic gains, the interpretation and implementation of these constitutional provisions will remain crucial in shaping the country’s political and social landscape. The ongoing dialogue between the legislature, judiciary, executive, and civil society on these issues is essential for fostering a vibrant democracy that respects both the right to assembly and the need for reasonable limitations. As Former Justice Jackton Ojwang aptly stated in his concurring opinion in the CORD case, “The Constitution is a living instrument, and its interpretation must evolve to meet the changing needs of society while safeguarding its fundamental principles.” It is through this evolving interpretation and implementation that Kenya can hope to achieve the delicate balance between freedom and order enshrined in its constitutional framework.
The writer is a legal researcher and lawyer.
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