On March 29, 2013, Inspector General of Kenyan Police David Kimaiyo “warned NGOs against engaging in demonstrations under the guise of practising their rights to congregate, saying they would be dealt with firmly.” Not only did he issue this warning, but he also directed how it should be understood: “This should not be construed as denial of the right to association but a precaution to ensure criminal elements do not hijack such demonstrations and engage in lawlessness.” The warning and Kimaiyo’s interpretation of it try to define how Kenyans should occupy public space, under what circumstances, and with what consequences.
If under President Daniel arap Moi the term “dissident” became a dirty word, then I would argue that two related terms have taken its place: activist and NGOs. As with dissidents, activists and NGOs are framed as being in league with “foreign” powers who “fund them” to undermine Kenyan sovereignty. Activists and NGOs are understood to threaten the “safety” of ordinary, peace-loving Kenyans, who believe in the wisdom and benevolence of elected leaders and the armed forces who protect them from “harm,” a harm that includes dangerous, violence-causing ideas.
Unlike the police who only seek to serve the common good—utumishi kwa wote—NGOs and activists attempt something more insidious. Their plans to “demonstrate” are really only a “guise” for something more disruptive, something that might open the door to “criminal elements” and risk “lawlessness.” The language slithers and coils, hinting but never saying. If, in fact, activists and NGOs have some other motive for planning demonstrations other than exercising their constitutionally guaranteed rights of association and to assemble, what is that motive? And what, in fact, is the relationship of “motive” to the right to assembly?
Section 36 of the constitution is explicit on this point:
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
Motive might be an issue if Mr. Kimaiyo could credibly demonstrate that the planned demonstrations will be violent and armed, in which case they are not protected. But Mr. Kimaiyo has no such evidence. Indeed, his claim is that “criminal elements” could “hijack” such demonstrations and cause “lawlessness.” All kinds of things “could” happen. But the right to assembly is not predicated on such speculation.
Mr. Kimaiyo is, perhaps, right to point out that his injunctions do not oppose the “right to association.” As laid out in section 35 of the Constitution, this right reads,
36. (1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—
(a) registration may not be withheld or withdrawn unreasonably;
(b) there shall be a right to have a fair hearing before a registration is cancelled.
While the right of association and the right of assembly are related, they are not the same thing. Mr. Kimaiyo’s warnings might not affect the right to association, but they do affect the right to assembly.
Mr. Kimaiyo’s desire to control not only association and assembly but also interpretation are worrying. The bill of rights was crafted so that ordinary Kenyans could understand it and invoke its protections as needed. It was crafted in language that allowed shared interpretation without requiring the mediating figure of a highly trained professional. The bill of rights was designed to protect us from state excesses and state repression, both of which are part of our very recent history. In attempting to control the meaning of constitutionally granted rights, Mr. Kimaiyo wades into dangerous territory, and we who value those rights should be prepared to defend them.
This is not to say that rights are never subject to interpretation or debate: the relatively short history of legally guaranteed rights in the form of “bills of rights” or the “rights of man”—here, I’m lazily taking Lynn Hunt’s work as a convenient point of departure—illustrates that such “rights” are always subject to contestation. Such rights are never “beyond” interpretation. Yet, the claim that they are open to interpretation is really quite different from what Mr. Kimaiyo attempts when he tells us that his actions do not violate the spirit of the new constitution.
More to the point, while the day might come when we inhabit a world when potential crimes can be halted by arresting in the present those who might commit them in a possible future, that day has not yet arrived. Note, Mr. Kimaiyo does not say the NGOs and activists are themselves criminal, but that unknown, “criminal elements” might “hijack” demonstrations and create “lawlessness.” This is, actually, an absurd standard. Any situation can be hijacked: an armed gunman can choose to hold a primary school hostage. Does this mean that parents should never send their children to primary school at all because unknown things might happen?
We should be wary when repressive acts are framed as acts of care or benevolence. We do not need a paternalistic police force. Nor do we need a police force that limits how the constitution should be interpreted. Mr. Kimaiyo’s threats have no place in a Kenya that values freedom of association and freedom of assembly.