'1. The Petitioner filed the Petition herein dated 24.6.24, seeking the following reliefs:
I. A DECLARATION that the use of water cannons, tear gas, live ammunition, rubber bullets or other crude weapons or draconian measures and/or the deployment of brute force or any form of violence against persons exercising their constitutional rights to protest against the Finance Bill, 2024 is illegal, unconstitutional and unacceptable in an open and democratic society like Kenya;
II. An Order of PROHIBITION be and is hereby issued forbidding the 1st and 2nd Respondents from using water cannons, tear gas, live ammunition, rubber bullets or other crude weapons or draconian measures and from deploying brute force or any form of violence against persons exercising their constitutional rights to protest against the Finance Bill, 2024;
III. A DECLARATION that the extrajudicial killing, arrest, abduction, detention, harassment, intimidation, torture, cruel, inhuman and degrading treatment of persons exercising their constitutional rights to protest against the Finance Bill, 2024 is a gross violation of the constitution;
IV. An Order of PROHIBITION be and is hereby issued forbidding the 1st and 2nd Respondents from committing any further extrajudicial killings, arrests, abductions, detentions, harassment, intimidation, torture, cruel, inhuman and degrading treatment of persons exercising their constitutional rights to protest against the Finance Bill, 2024;
V. A DECLARATION that the 1st Respondent has failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) in that he has failed to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
VI. An Order of PROHIBITION be and is hereby issued forbidding the 1st Respondent from deploying armed police in civilian clothes against persons exercising their constitutional rights to protest against the Finance Bill, 2024 contrary to his obligation under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
VII. A DECLARATION that the 1st Respondent has failed and neglected to exercise independent and impartial command of the NPS contrary to Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) to the extent that he takes illegal instructions and orders from above from the 2nd Respondent and other higher powers.
VIII. An Order of PROHIBITION be and is hereby issued forbidding the 1st Respondent from taking illegal instructions and orders from above from the 2nd Respondent or any other higher powers in contravention of Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) which require him to exercise independent and impartial command of the National Police Service.
IX. An Order of PROHIBITION be and is hereby issued against the 1st and 2nd Respondents forbidding them from interfering with the right to freedom of expression and association through social media platforms such as X (Formerly Twitter), TikTok, Instagram, YouTube or any other online platform by shutting down the internet or limiting internet connectivity.
X. An Order of PROHIBITION be and is hereby issued against the 1 st and 2nd Respondents restraining them from imposing any curfews or other restrictions on persons exercising their constitutional rights to protest against the Finance Bill, 2024 which may limit or fetter their enjoyment of fundamental rights and freedoms.
XI. An Order of CERTIORARI be and is hereby issued quashing any illegal and unconstitutional directive issued or to be issued by the 2nd Respondent including the imposition of curfews, state of emergency or shutting down of the internet.
XII. An Order of MANDAMUS be and is hereby issued compelling the 4th Respondent to investigate complaints relating to disciplinary and criminal offences committed by individual members of the National Police Service against persons exercising their constitutional rights to protest against the Finance Bill, 2024 in the nationwide Gen Z protests and to make recommendations including prosecution, compensation, internal disciplinary action or any other appropriate relief.
XIII. Costs of this Petition;
XIV. Such other or further relief as this Honourable court may deem just, expedient or equitable to grant.
2. The Petitioner’s case as set out in the Petition is that in exercise of their fundamental freedom of expression and the right to assembly, picket and demonstrate, the young people of Kenya popularly known as Generation Z or Gen Z (hereinafter Gen Z), staged nationwide peaceful protests against what they perceived to be excessive, inhumane and insensitive taxes introduced and/or enhanced by the Finance Bill, 2024. The protesters remained unarmed, peaceful and even good natured but were met with police brutality, extrajudicial killings, illegal arrests, abductions, detention, intimidation, harassment, torture, cruel, inhuman and degrading treatment and other excesses and violence. Additionally, the police acting under instructions from the 1st and 2nd Respondents responded to the peaceful protests by use of brute force and violence and deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons against peaceful protesters. The petitioner asserted that as a result of the aforesaid state sponsored violence against peaceful protesters, several innocent young Kenyans lost their lives and many were wounded.
3. The Petitioner further stated that the police also resorted to arbitrary arrests and illegal abductions of protesters and to intimidation and harassment of their perceived ring leaders hence violating their right to liberty and their illimitable freedom from torture and from cruel, inhumane and degrading treatment fundamentally safeguarded under the Constitution. Further that the 1st and 2nd Respondents deployed the Directorate of Criminal Investigations (DCI) to harass and intimidate perceived leaders of the Gen Z. The 2nd Respondent deployed armed police officers some sinisterly in civilian clothes against acceptable standards of professionalism and discipline of the National Police Service (NPS).
4. The Petitioner thus contended that the 1st Respondent failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and the relevant provisions of the NPS Act in that he failed to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society. The 1st Respondent further failed to exercise independent command and maintain political neutrality as required under Article 245 of the Constitution and the NPS Act and is taking illegal instructions and orders from above from the 2nd Respondent and other higher powers.
5. The Petitioner claimed that the rights and fundamental freedoms violated by the Respondents include those which pursuant to Article 25 of the Constitution cannot be limited under any circumstances whatsoever including freedom from torture and cruel, inhumane or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair trial and the right to an order of habeas corpus. Additionally, that the Gen Zs being youth, are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution.
6. The Petitioner further averred that he is apprehensive that the Respondents may seek to shut down the internet and to impose curfews in the guise of public order thus further violating the constitutional rights and freedoms of Kenyans. Additionally, that the Gen Z protestors have been mobilizing and associating through social media platforms such as X (Formerly Twitter), Tiktok, Instagram which would be affected if the Respondents interfere with the internet connectivity in Kenya.
7. The Petition is opposed by the 1st and 3rd Respondents vide a replying affidavit sworn on 15.7.24 by Elizabeth Marube, an Assistant Superintendent of Police of the Directorate of Legal Affairs at the Kenya Police Headquarters in which the allegations of the Petitioner were denied. It is the 1st and 2nd Respondents’ case that the rights under Article 37 is not absolute and is subject to limitations where there is a breach of peace or when demonstrators are armed. She stated that the Gen Z protestors were not peaceful armed with crude weapons such as such as stones and rungus contrary Article 37 of the Constitution and the Public Order Act. Further, that during the protests and demonstrations, roads were businesses were disrupted, protests were blocked thus curtailing movement, people not participating in the vehicles were burnt, harassed by protestors, public service vehicles and private public and private property destroyed. It was asserted that police officers did not harass, torture, abduct, illegally detain or kill any demonstrators who were peaceful and unarmed during the protests and that any force used was within the confines of the law.
8. It was further averred that police officers attached to Directorate of Criminal Investigations, Internal Affairs Unit, V.I.P protection sections and Crime Branches, are mandated through the Service Standing Orders to wear civilian clothes when on duty. Additionally, that police officers in civilian clothes are required to identify themselves through display of their identification badges. It was further averred that the wearing of civilian clothes by police officers is crucial in performance of their duties including collection of criminal intelligence, detection and prevention of crime and curtailing civilian clothes will adversely affect national security.
9. The IPOA filed a replying affidavit sworn on 4.11.24 by Abdirahman Jibril, its Senior Assistant Director Investigations. He averred that pursuant to its statutory mandate IPOA monitored the conduct of police officers during the GEN Z protests that took place in June, July and August 2024 and observed inter alia that:
i) The police response ranged from providing security from a distance to using, tear gas, arrests, rubber and live ammunition during the demonstrations.
ii) In a majority of instances, police conduct was restrained while in others there was use of force which led to injuries and fatalities.
iii) Hooded and masked officers in civilian clothes were deployed and also some of the police vehicles used had concealed identities contrary to the law and service standing orders.
iv) Some police commanders concealed their badges of rank and name tags contrary to the law and service standing orders.
v) The police lobbed teargas at the medical camps at Jamia Mosque and the Holy Family Basilica contrary to the law.
vi) In certain instances, protestors turned violent, overpowered police officers damaged and looted property.
10. It was further averred that IPOA found that the police did not effectively facilitate the protests as envisaged under Article 37 of the Constitution and that it made recommendations to address the lapses observed. Additionally, that pursuant to its statutory obligations, IPOA on its own motion and upon receipt of complaints also commenced investigations into 59 cases of death and 234 cases of injuries that occurred during the protests alleged to have been caused by members of the NPS. IPOA has already concluded investigations into 9 cases of death and 13 cases of serious injuries and where applicable forwarded the investigation files to the Director of Public Prosecutions for further action. Upon conclusion of investigation into the other cases, IPOA will make appropriate recommendations as required by the IPOA Act. In view of the steps taken, IPOA urged that the orders of mandamus sought by the Petitioner against it be dismissed.
11. Additionally, IPOA asserted that circumstances in which police officers can use force are well prescribed in section 61 of the NPS Act as read with the Sixth Schedule to the Act. Further, that the circumstances when police officers can use firearms have further been prescribed by the High Court in Katiba Institute & another v Attorney General & another: Independent Policing and Oversight Authority & 3 others (Interested Parties) (Constitutional Petition 379 of 2017) 120221 KEHC 17072 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment) where the court found paragraphs 1(c), (d) and (e) of part B of the sixth schedule are unconstitutional null and void ab initio and have no legal effect whatsoever. Consequently, police officers can only use firearms in circumstances set out in paragraphs I (a) and (b) of part B of the Sixth Schedule to the NPS Act to wit saving or protecting the life of the officer or other person and in self-defence or in defence of other person against imminent threat of life or serious injury. As far as Chapter 47 of the Service Standing Orders allows police officers to use firearms in circumstances not prescribed in the Sixth Schedule of the NPS Act as read with the court''s judgment in the cited case, the same is ultravires the Act and is unlawful. Consequently, the use of live ammunition to disperse an assembly does not accord with the law.
12. It was further stated that as per international guidelines on the use of less lethal weapons, tear gas and kinetic projectiles such as rubber bullets is restricted to only where there is imminent threat of injury to either a law enforcement official or a member of the public but cannot be used for the sole purpose of dispersing a protest. Such means can only be used against violent protestors but should be employed as a measure of last resort after de-escalation techniques have failed but should never be used in closed spaces. Additionally, that water cannons can only be used where there is a serious public disorder, where there is a significant likelihood of loss of life, serious injury or the widespread destruction of property, but even then, should not be targeted at an individual or groups of persons at short range.
13. Further, that pursuant to the Sixth Schedule of the NPS Act, a police officer in uniform is required to at all times affix a nametag or identifiable service number in a clearly visible part of the uniform, to ensure police officers can be easily identifiable for purposes of accountability. As such, deployment of police officers in civilian attire or hooded and masked officers to police protests undermines the obligation to ensure police officers are identifiable and frustrates efforts by IPOA to hold police officers accountable where there is unlawful use of force and firearms. IPOA thus stated that pursuant to Articles 23 and 165 of the Constitution the Court can issue orders to ensure police officers comply with constitutional and legal standards as informed by international guidelines and standards during public order management.
14. IPOA supports grant of prayer VI of the Petition but is unable to comment on the culpability or otherwise of members of the NPS and leaves the issues raised in prayers I, Il, Ill, IV, V, VIl, VIII, IX, X, XI for determination by the court. IPOA however urged that prayers XII and XIII against it be dismissed.
15. Parties filed their written submissions which I have duly considered. The following issues fall for determination:
i) Whether the petition has been pleaded with the requisite degree of precision.
ii) Whether the actions taken by the police against persons exercising their Article 37 rights were within the confines of the law and their mandate.
iii) Whether the Petitioner is entitled to the reliefs sought.
Whether the Petition has been pleaded with the requisite degree of precision
16. The 1st and 2nd Respondents submitted that the Petition has not met the threshold of a constitutional petition in that Petitioner has not pleaded in a precise manner the constitutional provisions alleged to have been violated and the manner of violation. They contend that the Petitioner has merely cited omnibus provisions of the Constitution and unsubstantiated allegations without providing sufficient particulars such as dates and geographical location the same or the particulars of the youth allegedly killed, harassed arrested, tortured and unlawfully detained by the Respondents. Additionally, that the Petitioner has not demonstrated the way in which the 1st Respondent sponsored the alleged violence against protestors.
17. All constitutional petitions are required to be pleaded with reasonable precision, and a party who alleges violation of rights must clearly state the nature of injury, the rights violated and the manner in which they have been violated. This principle was enunciated in the oft cited case of Anarita Karimi Njeru v Republic [1979] eKLR in which Trevelyan and Hancox, JJs stated:
We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
18. This principle was upheld in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR by the Court of Appeal, which observed as follows:
The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements.
19. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR held that:
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
20. Flowing from the cited case, it is quite evident that for a constitutional petition to succeed, a petitioner must cite with precision, the constitutional provisions alleged to have been violated or threatened and must also demonstrate the manner in which the said provisions have been violated or are threatened with violation and demonstrate the same with facts and evidence. of the case.
21. The Petitioner’s case herein is that in exercise of their fundamental freedom of expression and their rights to assembly, picket and demonstrate, the GenZ staged nationwide peaceful protests against what they perceived as excessive, inhumane and insensitive taxes in the Finance Bill, 2024. Further that in response thereto, the police under the instructions of the 1st and 2nd Respondents used brute force and violence and deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons against the peaceful protestors. The Petitioner contends that the police failed and neglected to discharge their obligations under Article 244 and 245 of the Constitution and under the NPS Act. The Petitioner further claims that the rights violated are among those listed in Article 25 that cannot be limited. Further that the GenZ are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution. Additionally, the Petitioner has claimed that the violated the provisions of Article 29 on freedom from torture and cruel, inhumane or degrading treatment or punishment, Article 30, freedom from slavery or servitude; Article 50 on the right to a fair trial and the right to an order of habeas corpus and Article 26 on right to life. Further, that the Gen Zs being youth, are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution.
22. A careful reading of the Petition will show that the Petitioner has set out the provisions in the Constitution and the manner in which they have been violated by the Respondents. I am accordingly satisfied that the Petition has met the threshold for a constitutional petition.
Whether the actions taken by the police against persons exercising their Article 37 rights were within the confines of the law and their mandate
23. The Petitioner’s complaint is that in quelling the GenZ protests, the 1st and 2nd Respondents acted heavy-handedly, disproportionately, unprofessionally, unlawfully and unconstitutionally in the handling of peaceful protesters and have in so doing violated the protesters’ fundamental rights and freedoms including the right to life (Article 26); freedom and security of the person (Article 29); freedom of [removed]Article 33); right to assemble, demonstrate, picket and petition (Article 37); and the rights of arrested persons and persons held in police custody or imprisoned under Articles 49 and 51 of the Constitution. Further, that as State organs they failed to respect, uphold and defend the Constitution as stipulated under Article 3 of the Constitution of Kenya and to discharge their fundamental duty to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights as required under Article 21(1) of the Constitution.
24. The Petitioner submitted that that Gen Z protesters while properly exercising their fundamental right under Article 37 of the Constitution were met with untold and unacceptable police brutality, extrajudicial killings, illegal arrests, abductions, detention, intimidation, harassment, torture, cruel, inhuman and degrading treatment and other excesses and violence instigated by the police under the command and instructions of the 1st and 2nd Respondents. Further, that in their brutal and violent response to peaceful protests, the police deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons; that officers from the Directorate of Criminal Investigations (DCI) or any other unit or quarters were deployed who resorted to arbitrary arrests and illegal abductions of protesters and to intimidation and harassment of their perceived ring leaders hence violating their right to liberty and their illimitable freedom from torture and freedom from cruel, inhuman and degrading treatment. 12.
25. Additionally, the Petitioner submits that the deployment of armed police officers in civilian clothes is contrary to acceptable standards of professionalism and discipline of the NPS. Further, that the 1st Respondent failed to exercise independent command and maintain political neutrality and also failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the National Police Service Act (cap 84) requiring him to lawfully administer, control and manage the NPS as a disciplined service and to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
26. In defence of the actions of the police, the Attorney General submitted that the Gen Z protestors failed to notify the regulating officer of the intended demonstrations which notification is intended to allow the police maintain law and order and provide security to the protestors as well as third parties not taking part in the demonstrations. The Gen Z protestors were armed with weapons such as rungus and stones, contrary to the provisions of the Constitution. Moreover, the protestors caused breach of peace by disrupting businesses, blocking roads, harassing third parties, burning public and private vehicles and destroying public and private property. Further, the protestors engaged in illegal activities including violence against police officers and looting of private and public property. They also raided the Supreme Court and the Parliament vandalized property of unknown value and set fire to the Nairobi County Government Offices, Uganda House, Cianda Market, Cafee Point Hotel. The protestors further damaged police vehicles attached to different police stations within the Republic of Kenya including GKB from Central Police Station Nairobi, GKB 065Y Embakasi Police Station, GKB 3440 and GKB 742B both from Dagoretti Police Station among others. The 1st and 3rd Respondents contended that the protests were not peaceful and violated the provisions of Article 37 of the Constitution.
27. It was further submitted that, Police Officers attached to the Directorate of Criminal Investigations, Internal Affairs Unit, V.I.P protection Sections and Crime Branches are mandated through the Service Standing Orders to wear civilian clothes when on duty. Additionally, any police officer may wear civilian clothes when the circumstances require it. Further, that police officers in civilian clothes are required to identify themselves through display of their identification badges. It was further submitted that the wearing of civilian clothes by the police officers is crucial in the performance of their duties including collection of criminal intelligence, detection and prevention of crime and curtailing civilian clothes will adversely affect national security. The 1st and 3rd respondents thus asserted that the actions taken by the police during the protests were within the confines of the law and well within their mandate.
28. In its submissions, IPOA submitted that in its monitoring report, it observed that police did use water cannons, rubber bullets and live ammunition leading to cases of serious injuries and fatalities among protestors and even persons not participating in the protests. IPOA also observed instances where protestors were armed and violent and assaulted police officers and damaged property. IPOA however submitted that most cases were under investigation and appropriate recommendations would be made upon conclusion of investigations.
29. IPOA supported the prohibition of the 1st Respondent from deploying ununiformed police officers against persons exercising their right to protest. It was submitted that in its report regarding the conduct of police officers during the protests, IPOA noted the deployment of police officers in civilian clothing who carried and deployed riot equipment and also conducted arrests. Some of the officers were hooded and masked. IPOA also observed the deployment of police vehicles with concealed names and number plates. IPOA thus submitted that deploying police officers with clear identification in public order management, is critical in ensuring the accountability requirement in the Sixth Schedule to the National Police Act.
30. IPOA is established under Section 5 of the Independent Policing Oversight Authority Act. Section It is a4 of the Act provides that IPOA is independent and shall not in the performance of its functions be subject to any person, office or authority. The objectives of IPOA as stipulated in Section 5 of the Act are to hold the Police accountable to the public in the performance of their functions; give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and finally) ensure independent oversight of the handling of complaints by the Service.
31. Article 37 of the Constitution guarantees to every person the right to assembly, demonstration, picketing and petition as follows:
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
32. The right to peaceful assembly is also guaranteed under Article 20 of the Universal Declaration of Human Rights and Article 21 of the International Covenant on Civil and Political Rights.
33. The right to assemble, picket and to demonstrate is an essential feature of any democratic society. A key component of the right under Article 37 is that it must be exercised peaceably and participants must be unarmed. This right may only be limited by law. Such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation must also adhere to the principles outlined in Article 24 of the Consti
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I. A DECLARATION that the use of water cannons, tear gas, live ammunition, rubber bullets or other crude weapons or draconian measures and/or the deployment of brute force or any form of violence against persons exercising their constitutional rights to protest against the Finance Bill, 2024 is illegal, unconstitutional and unacceptable in an open and democratic society like Kenya;
II. An Order of PROHIBITION be and is hereby issued forbidding the 1st and 2nd Respondents from using water cannons, tear gas, live ammunition, rubber bullets or other crude weapons or draconian measures and from deploying brute force or any form of violence against persons exercising their constitutional rights to protest against the Finance Bill, 2024;
III. A DECLARATION that the extrajudicial killing, arrest, abduction, detention, harassment, intimidation, torture, cruel, inhuman and degrading treatment of persons exercising their constitutional rights to protest against the Finance Bill, 2024 is a gross violation of the constitution;
IV. An Order of PROHIBITION be and is hereby issued forbidding the 1st and 2nd Respondents from committing any further extrajudicial killings, arrests, abductions, detentions, harassment, intimidation, torture, cruel, inhuman and degrading treatment of persons exercising their constitutional rights to protest against the Finance Bill, 2024;
V. A DECLARATION that the 1st Respondent has failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) in that he has failed to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
VI. An Order of PROHIBITION be and is hereby issued forbidding the 1st Respondent from deploying armed police in civilian clothes against persons exercising their constitutional rights to protest against the Finance Bill, 2024 contrary to his obligation under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
VII. A DECLARATION that the 1st Respondent has failed and neglected to exercise independent and impartial command of the NPS contrary to Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) to the extent that he takes illegal instructions and orders from above from the 2nd Respondent and other higher powers.
VIII. An Order of PROHIBITION be and is hereby issued forbidding the 1st Respondent from taking illegal instructions and orders from above from the 2nd Respondent or any other higher powers in contravention of Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the NPS Act (cap 84) which require him to exercise independent and impartial command of the National Police Service.
IX. An Order of PROHIBITION be and is hereby issued against the 1st and 2nd Respondents forbidding them from interfering with the right to freedom of expression and association through social media platforms such as X (Formerly Twitter), TikTok, Instagram, YouTube or any other online platform by shutting down the internet or limiting internet connectivity.
X. An Order of PROHIBITION be and is hereby issued against the 1 st and 2nd Respondents restraining them from imposing any curfews or other restrictions on persons exercising their constitutional rights to protest against the Finance Bill, 2024 which may limit or fetter their enjoyment of fundamental rights and freedoms.
XI. An Order of CERTIORARI be and is hereby issued quashing any illegal and unconstitutional directive issued or to be issued by the 2nd Respondent including the imposition of curfews, state of emergency or shutting down of the internet.
XII. An Order of MANDAMUS be and is hereby issued compelling the 4th Respondent to investigate complaints relating to disciplinary and criminal offences committed by individual members of the National Police Service against persons exercising their constitutional rights to protest against the Finance Bill, 2024 in the nationwide Gen Z protests and to make recommendations including prosecution, compensation, internal disciplinary action or any other appropriate relief.
XIII. Costs of this Petition;
XIV. Such other or further relief as this Honourable court may deem just, expedient or equitable to grant.
2. The Petitioner’s case as set out in the Petition is that in exercise of their fundamental freedom of expression and the right to assembly, picket and demonstrate, the young people of Kenya popularly known as Generation Z or Gen Z (hereinafter Gen Z), staged nationwide peaceful protests against what they perceived to be excessive, inhumane and insensitive taxes introduced and/or enhanced by the Finance Bill, 2024. The protesters remained unarmed, peaceful and even good natured but were met with police brutality, extrajudicial killings, illegal arrests, abductions, detention, intimidation, harassment, torture, cruel, inhuman and degrading treatment and other excesses and violence. Additionally, the police acting under instructions from the 1st and 2nd Respondents responded to the peaceful protests by use of brute force and violence and deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons against peaceful protesters. The petitioner asserted that as a result of the aforesaid state sponsored violence against peaceful protesters, several innocent young Kenyans lost their lives and many were wounded.
3. The Petitioner further stated that the police also resorted to arbitrary arrests and illegal abductions of protesters and to intimidation and harassment of their perceived ring leaders hence violating their right to liberty and their illimitable freedom from torture and from cruel, inhumane and degrading treatment fundamentally safeguarded under the Constitution. Further that the 1st and 2nd Respondents deployed the Directorate of Criminal Investigations (DCI) to harass and intimidate perceived leaders of the Gen Z. The 2nd Respondent deployed armed police officers some sinisterly in civilian clothes against acceptable standards of professionalism and discipline of the National Police Service (NPS).
4. The Petitioner thus contended that the 1st Respondent failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and the relevant provisions of the NPS Act in that he failed to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society. The 1st Respondent further failed to exercise independent command and maintain political neutrality as required under Article 245 of the Constitution and the NPS Act and is taking illegal instructions and orders from above from the 2nd Respondent and other higher powers.
5. The Petitioner claimed that the rights and fundamental freedoms violated by the Respondents include those which pursuant to Article 25 of the Constitution cannot be limited under any circumstances whatsoever including freedom from torture and cruel, inhumane or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair trial and the right to an order of habeas corpus. Additionally, that the Gen Zs being youth, are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution.
6. The Petitioner further averred that he is apprehensive that the Respondents may seek to shut down the internet and to impose curfews in the guise of public order thus further violating the constitutional rights and freedoms of Kenyans. Additionally, that the Gen Z protestors have been mobilizing and associating through social media platforms such as X (Formerly Twitter), Tiktok, Instagram which would be affected if the Respondents interfere with the internet connectivity in Kenya.
7. The Petition is opposed by the 1st and 3rd Respondents vide a replying affidavit sworn on 15.7.24 by Elizabeth Marube, an Assistant Superintendent of Police of the Directorate of Legal Affairs at the Kenya Police Headquarters in which the allegations of the Petitioner were denied. It is the 1st and 2nd Respondents’ case that the rights under Article 37 is not absolute and is subject to limitations where there is a breach of peace or when demonstrators are armed. She stated that the Gen Z protestors were not peaceful armed with crude weapons such as such as stones and rungus contrary Article 37 of the Constitution and the Public Order Act. Further, that during the protests and demonstrations, roads were businesses were disrupted, protests were blocked thus curtailing movement, people not participating in the vehicles were burnt, harassed by protestors, public service vehicles and private public and private property destroyed. It was asserted that police officers did not harass, torture, abduct, illegally detain or kill any demonstrators who were peaceful and unarmed during the protests and that any force used was within the confines of the law.
8. It was further averred that police officers attached to Directorate of Criminal Investigations, Internal Affairs Unit, V.I.P protection sections and Crime Branches, are mandated through the Service Standing Orders to wear civilian clothes when on duty. Additionally, that police officers in civilian clothes are required to identify themselves through display of their identification badges. It was further averred that the wearing of civilian clothes by police officers is crucial in performance of their duties including collection of criminal intelligence, detection and prevention of crime and curtailing civilian clothes will adversely affect national security.
9. The IPOA filed a replying affidavit sworn on 4.11.24 by Abdirahman Jibril, its Senior Assistant Director Investigations. He averred that pursuant to its statutory mandate IPOA monitored the conduct of police officers during the GEN Z protests that took place in June, July and August 2024 and observed inter alia that:
i) The police response ranged from providing security from a distance to using, tear gas, arrests, rubber and live ammunition during the demonstrations.
ii) In a majority of instances, police conduct was restrained while in others there was use of force which led to injuries and fatalities.
iii) Hooded and masked officers in civilian clothes were deployed and also some of the police vehicles used had concealed identities contrary to the law and service standing orders.
iv) Some police commanders concealed their badges of rank and name tags contrary to the law and service standing orders.
v) The police lobbed teargas at the medical camps at Jamia Mosque and the Holy Family Basilica contrary to the law.
vi) In certain instances, protestors turned violent, overpowered police officers damaged and looted property.
10. It was further averred that IPOA found that the police did not effectively facilitate the protests as envisaged under Article 37 of the Constitution and that it made recommendations to address the lapses observed. Additionally, that pursuant to its statutory obligations, IPOA on its own motion and upon receipt of complaints also commenced investigations into 59 cases of death and 234 cases of injuries that occurred during the protests alleged to have been caused by members of the NPS. IPOA has already concluded investigations into 9 cases of death and 13 cases of serious injuries and where applicable forwarded the investigation files to the Director of Public Prosecutions for further action. Upon conclusion of investigation into the other cases, IPOA will make appropriate recommendations as required by the IPOA Act. In view of the steps taken, IPOA urged that the orders of mandamus sought by the Petitioner against it be dismissed.
11. Additionally, IPOA asserted that circumstances in which police officers can use force are well prescribed in section 61 of the NPS Act as read with the Sixth Schedule to the Act. Further, that the circumstances when police officers can use firearms have further been prescribed by the High Court in Katiba Institute & another v Attorney General & another: Independent Policing and Oversight Authority & 3 others (Interested Parties) (Constitutional Petition 379 of 2017) 120221 KEHC 17072 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment) where the court found paragraphs 1(c), (d) and (e) of part B of the sixth schedule are unconstitutional null and void ab initio and have no legal effect whatsoever. Consequently, police officers can only use firearms in circumstances set out in paragraphs I (a) and (b) of part B of the Sixth Schedule to the NPS Act to wit saving or protecting the life of the officer or other person and in self-defence or in defence of other person against imminent threat of life or serious injury. As far as Chapter 47 of the Service Standing Orders allows police officers to use firearms in circumstances not prescribed in the Sixth Schedule of the NPS Act as read with the court''s judgment in the cited case, the same is ultravires the Act and is unlawful. Consequently, the use of live ammunition to disperse an assembly does not accord with the law.
12. It was further stated that as per international guidelines on the use of less lethal weapons, tear gas and kinetic projectiles such as rubber bullets is restricted to only where there is imminent threat of injury to either a law enforcement official or a member of the public but cannot be used for the sole purpose of dispersing a protest. Such means can only be used against violent protestors but should be employed as a measure of last resort after de-escalation techniques have failed but should never be used in closed spaces. Additionally, that water cannons can only be used where there is a serious public disorder, where there is a significant likelihood of loss of life, serious injury or the widespread destruction of property, but even then, should not be targeted at an individual or groups of persons at short range.
13. Further, that pursuant to the Sixth Schedule of the NPS Act, a police officer in uniform is required to at all times affix a nametag or identifiable service number in a clearly visible part of the uniform, to ensure police officers can be easily identifiable for purposes of accountability. As such, deployment of police officers in civilian attire or hooded and masked officers to police protests undermines the obligation to ensure police officers are identifiable and frustrates efforts by IPOA to hold police officers accountable where there is unlawful use of force and firearms. IPOA thus stated that pursuant to Articles 23 and 165 of the Constitution the Court can issue orders to ensure police officers comply with constitutional and legal standards as informed by international guidelines and standards during public order management.
14. IPOA supports grant of prayer VI of the Petition but is unable to comment on the culpability or otherwise of members of the NPS and leaves the issues raised in prayers I, Il, Ill, IV, V, VIl, VIII, IX, X, XI for determination by the court. IPOA however urged that prayers XII and XIII against it be dismissed.
15. Parties filed their written submissions which I have duly considered. The following issues fall for determination:
i) Whether the petition has been pleaded with the requisite degree of precision.
ii) Whether the actions taken by the police against persons exercising their Article 37 rights were within the confines of the law and their mandate.
iii) Whether the Petitioner is entitled to the reliefs sought.
Whether the Petition has been pleaded with the requisite degree of precision
16. The 1st and 2nd Respondents submitted that the Petition has not met the threshold of a constitutional petition in that Petitioner has not pleaded in a precise manner the constitutional provisions alleged to have been violated and the manner of violation. They contend that the Petitioner has merely cited omnibus provisions of the Constitution and unsubstantiated allegations without providing sufficient particulars such as dates and geographical location the same or the particulars of the youth allegedly killed, harassed arrested, tortured and unlawfully detained by the Respondents. Additionally, that the Petitioner has not demonstrated the way in which the 1st Respondent sponsored the alleged violence against protestors.
17. All constitutional petitions are required to be pleaded with reasonable precision, and a party who alleges violation of rights must clearly state the nature of injury, the rights violated and the manner in which they have been violated. This principle was enunciated in the oft cited case of Anarita Karimi Njeru v Republic [1979] eKLR in which Trevelyan and Hancox, JJs stated:
We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
18. This principle was upheld in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR by the Court of Appeal, which observed as follows:
The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements.
19. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR held that:
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
20. Flowing from the cited case, it is quite evident that for a constitutional petition to succeed, a petitioner must cite with precision, the constitutional provisions alleged to have been violated or threatened and must also demonstrate the manner in which the said provisions have been violated or are threatened with violation and demonstrate the same with facts and evidence. of the case.
21. The Petitioner’s case herein is that in exercise of their fundamental freedom of expression and their rights to assembly, picket and demonstrate, the GenZ staged nationwide peaceful protests against what they perceived as excessive, inhumane and insensitive taxes in the Finance Bill, 2024. Further that in response thereto, the police under the instructions of the 1st and 2nd Respondents used brute force and violence and deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons against the peaceful protestors. The Petitioner contends that the police failed and neglected to discharge their obligations under Article 244 and 245 of the Constitution and under the NPS Act. The Petitioner further claims that the rights violated are among those listed in Article 25 that cannot be limited. Further that the GenZ are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution. Additionally, the Petitioner has claimed that the violated the provisions of Article 29 on freedom from torture and cruel, inhumane or degrading treatment or punishment, Article 30, freedom from slavery or servitude; Article 50 on the right to a fair trial and the right to an order of habeas corpus and Article 26 on right to life. Further, that the Gen Zs being youth, are a vulnerable group requiring special protection under Articles 20 and 21 of the Constitution.
22. A careful reading of the Petition will show that the Petitioner has set out the provisions in the Constitution and the manner in which they have been violated by the Respondents. I am accordingly satisfied that the Petition has met the threshold for a constitutional petition.
Whether the actions taken by the police against persons exercising their Article 37 rights were within the confines of the law and their mandate
23. The Petitioner’s complaint is that in quelling the GenZ protests, the 1st and 2nd Respondents acted heavy-handedly, disproportionately, unprofessionally, unlawfully and unconstitutionally in the handling of peaceful protesters and have in so doing violated the protesters’ fundamental rights and freedoms including the right to life (Article 26); freedom and security of the person (Article 29); freedom of [removed]Article 33); right to assemble, demonstrate, picket and petition (Article 37); and the rights of arrested persons and persons held in police custody or imprisoned under Articles 49 and 51 of the Constitution. Further, that as State organs they failed to respect, uphold and defend the Constitution as stipulated under Article 3 of the Constitution of Kenya and to discharge their fundamental duty to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights as required under Article 21(1) of the Constitution.
24. The Petitioner submitted that that Gen Z protesters while properly exercising their fundamental right under Article 37 of the Constitution were met with untold and unacceptable police brutality, extrajudicial killings, illegal arrests, abductions, detention, intimidation, harassment, torture, cruel, inhuman and degrading treatment and other excesses and violence instigated by the police under the command and instructions of the 1st and 2nd Respondents. Further, that in their brutal and violent response to peaceful protests, the police deployed water cannons, teargas, live ammunition, rubber bullets and other crude and archaic weapons; that officers from the Directorate of Criminal Investigations (DCI) or any other unit or quarters were deployed who resorted to arbitrary arrests and illegal abductions of protesters and to intimidation and harassment of their perceived ring leaders hence violating their right to liberty and their illimitable freedom from torture and freedom from cruel, inhuman and degrading treatment. 12.
25. Additionally, the Petitioner submits that the deployment of armed police officers in civilian clothes is contrary to acceptable standards of professionalism and discipline of the NPS. Further, that the 1st Respondent failed to exercise independent command and maintain political neutrality and also failed and neglected to discharge his obligations under Articles 244 and 245 of the Constitution and Sections 8, 8A and 10 of the National Police Service Act (cap 84) requiring him to lawfully administer, control and manage the NPS as a disciplined service and to uphold the highest possible standards of professionalism and discipline among the Kenyan police and to foster and promote good relations between the police and the broader society.
26. In defence of the actions of the police, the Attorney General submitted that the Gen Z protestors failed to notify the regulating officer of the intended demonstrations which notification is intended to allow the police maintain law and order and provide security to the protestors as well as third parties not taking part in the demonstrations. The Gen Z protestors were armed with weapons such as rungus and stones, contrary to the provisions of the Constitution. Moreover, the protestors caused breach of peace by disrupting businesses, blocking roads, harassing third parties, burning public and private vehicles and destroying public and private property. Further, the protestors engaged in illegal activities including violence against police officers and looting of private and public property. They also raided the Supreme Court and the Parliament vandalized property of unknown value and set fire to the Nairobi County Government Offices, Uganda House, Cianda Market, Cafee Point Hotel. The protestors further damaged police vehicles attached to different police stations within the Republic of Kenya including GKB from Central Police Station Nairobi, GKB 065Y Embakasi Police Station, GKB 3440 and GKB 742B both from Dagoretti Police Station among others. The 1st and 3rd Respondents contended that the protests were not peaceful and violated the provisions of Article 37 of the Constitution.
27. It was further submitted that, Police Officers attached to the Directorate of Criminal Investigations, Internal Affairs Unit, V.I.P protection Sections and Crime Branches are mandated through the Service Standing Orders to wear civilian clothes when on duty. Additionally, any police officer may wear civilian clothes when the circumstances require it. Further, that police officers in civilian clothes are required to identify themselves through display of their identification badges. It was further submitted that the wearing of civilian clothes by the police officers is crucial in the performance of their duties including collection of criminal intelligence, detection and prevention of crime and curtailing civilian clothes will adversely affect national security. The 1st and 3rd respondents thus asserted that the actions taken by the police during the protests were within the confines of the law and well within their mandate.
28. In its submissions, IPOA submitted that in its monitoring report, it observed that police did use water cannons, rubber bullets and live ammunition leading to cases of serious injuries and fatalities among protestors and even persons not participating in the protests. IPOA also observed instances where protestors were armed and violent and assaulted police officers and damaged property. IPOA however submitted that most cases were under investigation and appropriate recommendations would be made upon conclusion of investigations.
29. IPOA supported the prohibition of the 1st Respondent from deploying ununiformed police officers against persons exercising their right to protest. It was submitted that in its report regarding the conduct of police officers during the protests, IPOA noted the deployment of police officers in civilian clothing who carried and deployed riot equipment and also conducted arrests. Some of the officers were hooded and masked. IPOA also observed the deployment of police vehicles with concealed names and number plates. IPOA thus submitted that deploying police officers with clear identification in public order management, is critical in ensuring the accountability requirement in the Sixth Schedule to the National Police Act.
30. IPOA is established under Section 5 of the Independent Policing Oversight Authority Act. Section It is a4 of the Act provides that IPOA is independent and shall not in the performance of its functions be subject to any person, office or authority. The objectives of IPOA as stipulated in Section 5 of the Act are to hold the Police accountable to the public in the performance of their functions; give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and finally) ensure independent oversight of the handling of complaints by the Service.
31. Article 37 of the Constitution guarantees to every person the right to assembly, demonstration, picketing and petition as follows:
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
32. The right to peaceful assembly is also guaranteed under Article 20 of the Universal Declaration of Human Rights and Article 21 of the International Covenant on Civil and Political Rights.
33. The right to assemble, picket and to demonstrate is an essential feature of any democratic society. A key component of the right under Article 37 is that it must be exercised peaceably and participants must be unarmed. This right may only be limited by law. Such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation must also adhere to the principles outlined in Article 24 of the Consti
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