The High Court yesterday declared the government’s ban on protests in Nairobi’s Central Business District (CBD) during the anti-Finance Bill demonstrations in June 2024 unconstitutional. 

Justice Bahati Mwamuye ruled that the decision by Nairobi Police Commander Adamson Bungei to prohibit public gatherings in the CBD violated Article 37 of the Constitution, which guarantees the right to peaceful assembly, demonstration, and picketing. 

The court also barred police from deploying officers in civilian clothing or with concealed identities during public protests. 

“Any law enforcement officer deployed to maintain law and order during an assembly, demonstration, or picketing must be in uniform and shall not, in any way, conceal their identity, including by obscuring their face,” Justice Mwamuye stated in his judgment 

Finance Bill 

The case was filed by 11 protesters, represented by lawyer Pareno Solonka, who were arrested on June 18, 2024, during protests against the Finance Bill.  

The petition was filed against the Attorney General, the Inspector General of Police, and Bungei. 

Justice Mwamuye awarded the 11 petitioners a total of Sh 2.2 million in damages for unlawful arrest and violation of their constitutional rights, stating that police acted beyond their lawful powers. 

“The conduct of police officers who carried out unlawful arrests of individuals exercising their right to picket under Article 37 amounted to a violation of those individuals’ rights,” he said. 

In a separate but related petition by the Law Society of Kenya (LSK), the court also found that police officers deployed to disperse demonstrators on June 18 acted unlawfully. 

Unidentifiable accountability 

The decision noted that the deployment of masked and unidentifiable officers created an atmosphere of impunity and undermined accountability. 

The court emphasised that any restriction on the right to protest must meet the threshold under Article 24 of the Constitution.  

The blanket ban issued in the CBD was described as overbroad and unconstitutional. 

The LSK petition also identified police officer Isaiah Ndumba Murangiri as the officer allegedly responsible for the fatal shooting of 19-year-old protester Rex Masai.  

The court did not rule on criminal liability but noted the importance of identification and transparency in law enforcement operations. 

Justice Mwamuye cited multiple violations of constitutional provisions, including the rights to freedom of expression, peaceful assembly, human dignity, freedom from arbitrary arrest, and due process under Articles 27, 28, 29, 33, 37, 49, and 244. 

“The petitioners have succeeded. The rights of the petitioners were violated,” he concluded.