The unconstitutionality of the Kenyan Assembly and Demonstration Bill 2024

The Kenyan National Assembly is presently considering The Assembly and Demonstration Bill 2024. The consideration of this Bill has assumed specific urgency in light of the ongoing nationwide protests around the Finance Bill 2024. This blog post will argue that key provisions of The Assembly and Demonstration Bill ["the Bill"] are unconstitutional. Under the guise of imposing neutral time/place/manner regulations, the Bill in effect imposes disproportionate restrictions upon the fundamental right to assembly and to demonstrate, protected by Article 37 of the Kenyan Constitution. This post will focus upon three sets of provisions: the "mask mandate", the "liability clauses", and the "permissions clauses" (the names are mine).

The mask mandate Section 11(c) of the Bill prohibits any person, at an assembly or a demonstration, from "wear[ing] a mask or any other apparel or item which obscures his face or prevents his identification." The intent of the provision is obvious: it is to make protesters transparent to the State, and deny them anonymity in the exercise of the constitutional rights under Article 37.