17 October 2017

Kenya: Court Lifts Demo Ban in Nairobi, Kisumu and Mombasa CBDs

Nairobi — The High Court has temporarily lifted the ban placed on demonstrations within the Nairobi, Mombasa and Kisumu Central Business Districts by Acting Interior Cabinet Secretary Fred Matiangi.

It has also prohibited the arrest of the National Super Alliance Chief Executive Norman Magaya over the property damage witnessed during the October 11 protests.

"Pending the hearing and determination of the present application and petition, conservatory orders be issued herein staying and quashing the implementation and/or directive by Honourable Fred Matiangi, whose effect is the arrest of the petitioner Norman Magaya for discharging his lawful activities as the CEO of the National Super Alliance," the orders read.

Magaya challenged Matiangi's pronouncement on picketing within the CBDs in Nairobi, Mombasa and Kisumu on grounds that they contravene the fundamental right to peaceably march.

He also challenged Matiangi's directive that he be held responsible for any damage witnessed during NASA protests in agitation for staff changes at the Independent Electoral and Boundaries Commission.

"Our client is perturbed that before completion of investigations to identify those responsible for any breach of law, you have called upon all Kenyans whose property was destroyed or looted during the demonstrations to report to the OCS Nairobi Central Police Station to facilitate legal action against our client. It is therefore evident that you have a pre-conceived mind to arrest our client irrespective of the outcome of that investigation," Apollo Mboya acting on behalf of Magaya, stated in a cease and desist letter to Matiangi.

Magaya has also accused the authorities of playing favourites with the Nairobi Business Community outfit whom he has testified are political henchmen working at the behest of the establishment to disrupt their demonstrations and cause damage with a view to paint NASA in bad light.

"A group styling itself as Nairobi Business Community has been participating in demonstrations within the Nairobi CBD on the same days as NASA without issuing any notification to the Police. This group, on more than one occasion, confronted and attacked the supporters of NASA peacefully demonstrating."

As for the criminal elements in NASA's midst, Magaya submitted, nothing stopped the police from pursuing them individually. "With regard to any unfortunate destruction of property or looting during or after the demonstration, the police have the means and instruments to identify and arrest the law breakers taking into account that the Government spent Sh15 billion of taxpayers' resources to acquire and install CCTV with facial and movement recognition."

When he banned protests within the CBDs of Nairobi, Mombasa and Kisumu last week, Matiangi gave as among his reasons that they demonstrably disturbed the peace and ignored the police's feedback on receiving notification of the planned protests.

"We acknowledge receipt of your letter dated October 12, you are required by the Public Order Act to the Local Officer Commanding Police Station (OCS) at least three days before the proposed date of such proposed public meeting or procession, the procession you have organised for today (October 13) within the City of Nairobi is not allowed accordingly," Nairobi County Commander Japheth Koome wrote to Magaya.

And while President Uhuru Kenyatta had previously adopted an accommodating attitude toward the protests initially, he has since condemned their turbulent nature.

"You cannot play with the lives of Kenyans. You instigate violence cloaked as peaceful demonstrations but which peaceful protests involve attacking the police, damaging cars, looting or pelting police stations with rocks?" he posed.

"If you want to hold peaceful protest, hold peaceful protests but you cannot expect the authorities not to take action when the law is broken," he said at a rally in Nyahururu on Sunday.

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