Finance Bill protests: LSK warns of lawsuit over response by Bungei, police officers

The Law Society of Kenya (LSK) has warned the city police boss of court action should he act contrary to its recommendations concerning response to demonstrations against the Finance Bill, 2024, which are taking place in the Nairobi town centre.

Members of the public are taking part in the "Occupy Parliament" protests even as the National Assembly Finance and National Planning Committee prepares to table its report on the bill during its sitting on Tuesday afternoon.

The LSK wrote a letter to Nairobi Region Police Commander Adamson Bungei, asking that he direct police officers to permit the protests, which armed anti-riot police officers are using teargas to quell, emphasising that they raise awareness against over-taxation.

Bungei had declared the protests illegal, dismissing any plans to organise them in the city. However, the organisers stated that it would be a peaceful march and that they would comply with all directives.

In response to Bungei’s statement, Odhiambo urged the police to limit their role to providing security to citizens during protests.

“We have seen your press statement today in which you claim to cancel the planned protests, restricting citizens' right to protest peacefully and unarmed. We would like to clarify that Article 37 of the Constitution of Kenya provides for the right to assembly and demonstration. It has no provision for notice to be given to you nor can you limit anyone's rights outside what is provided for under Article 24 of the Constitution. Article 19(3) further guarantees these rights and fundamental freedoms. Your actions would therefore be construed to amount to suspension of Articles 19 and 37 of the Constitution, which actions are unconstitutional,” she said.

“We therefore demand that you retract the statement and allow the protests to go on as planned, restricting yourselves to only providing security to the citizens of Kenya during the protests. We urge you to reconsider your position, noting that your actions, which will essentially be unlawful, may also result in violence against innocent citizens by the police and actions which may also result in violent attacks and injuries that can be avoided.”

The LSK president condemned the police officers' use of teargas on the protesters, describing it as a "despicable affront to the rule of law", and criticising Bungei for "ignoring" the protest notification from the organisers.

“We are particularly shocked that Adamson Bungei, on a frolic of his own, has elected to ignore a notification of the protest from the organisers under the guise of lack of form. We wish to sound our unequivocal warning to Bungei and all officers acting under his command from taking any act of aggression against the protestors in the name of giving effect to this unlawful, unreasonable, and irrational directive," she said.

"We note that the form for a notification as provided under the Schedule to the Public Order Act merely requires the provision of information pertaining to the particulars of the applicant, and the date, time and place of the protest."

Odhiambo emphasised that Bungei's authority to reject a notification should ensure the security of both protesters and the public, not invalidate notifications based on self-determined thresholds.

“The alleged discretion to invalidate a notification for want of meeting a self-determined threshold is a nullity, and any acts done on account thereof are an illegality. We demand that Bungei call off his directive immediately and instruct his officers to stand down from making any arbitrary arrests or meting out violence against the protesters,” she said.

Odhiambo warned that the LSK would take legal action against Bungei and any officer who violates the rights of the protestors on account of his instructions, finding him personally liable for any breaches of the Constitution and the National Police Service Act.

“Kindly note that should you proceed to disregard our request, we will initiate court proceedings against you based on the doctrine of command responsibility, and proceed to seek orders holding you personally liable for harm caused by the police to the protesters. We trust that you will be implored to do the right thing."