KENYA'S PRESIDENT HAS PROMISED TO CHANGE THE COUNTRY'S COLONIAL-ERA LAW GOVERNING PUBLIC DEMONSTRATIONS. OPPOSITION POLITICIANS SAY THE LAW IS UNCONSTITUTIONAL.KENYA'S "PUBLIC ORDER ACT" WAS DRAFTED BY BRITISH COLONIALISTS IN THE 1950'S TO CONTROL GROUPS AGITATING FOR INDEPENDENCE. IT REQUIRES A GOVERNMENT PERMIT FOR ANY POLITICAL MEETING.
THE ACT WAS USED DURING THE STATE OF EMERGENCY CALLED TO COMBAT THE MAU MAU UPRISING, WHEN ARMED CITIZENS ATTACKED GOVERNMENT OFFICES AND KILLED THOSE THOUGHT TO BE COLLABORATING WITH COLONIAL AUTHORITIES.
AT INDEPENDENCE, LAWS DISCRIMINATING ON THE BASIS OF RACE WERE REPEALED BY THE NEW GOVERNMENT. BUT MANY MEASURES GOVERNING PUBLIC SECURITY AND THE AUTHORITY OF LOCAL CHIEFS REMAINED.
LAURENCE MUITE OF THE INTERNATIONAL CENTER FOR LAW AND RESEARCH IN NAIROBI SAYS POST-INDEPENDENCE GOVERNMENTS WERE UNWILLING TO GIVE UP NEWLY FOUND POWER.
THE BRITISH WANTED TO CONTROL THE AFRICANS. THE KENYAN GOVERNMENT ALSO WANTED TO CONTROL THE AFRICANS EVEN AFTER THE INDEPENDENCE. IF YOU THINK ABOUT AFRICA AFTER 1963, I THINK GOVERNANCE WAS ABOUT CONTROL. GOVERNANCE WAS ABOUT ENSURING THAT CITIZENS DID WHAT YOU AS THE LEADER WANTED THEM TO DO RATHER THAN WHAT THEY THE CITIZENS WANTED TO DO.
OPPOSITION POLITICIANS IN KENYA SAY THE GOVERNMENT HAS CONTINUED TO USE THE PUBLIC ORDER ACT TO PREVENT MEETINGS CRITICAL OF THE RULING PARTY. THOUGH THE LAW REMAINS ON THE BOOKS, OPPOSITION ACTIVIST AND LAWYER PAUL MUITE SAYS IT IS CLEARLY UNCONSTITUTIONAL.
THE COLONIAL PUBLIC ORDER ACT ANTEDATES THE WRITTEN CONSTITUTION WHICH HAS GOT A BILL OF RIGHTS IN IT GUARANTEEING THE CONSTITUTIONAL FREEDOM OF ASSEMBLY AND ASSOCIATION. IF WE HAD AN INDEPENDENT JUDICIARY IN THIS COUNTRY -- WHICH REGRETTABLY WE DO NOT HAVE -- THEY WOULD HAVE CLEARLY STRUCK OUT THIS PIECE OF LEGISLATION BECAUSE IT IS IN HEAD-ON COLLISION WITH THE BILL OF RIGHTS IN THE WRITTEN CONSTITUTION OF KENYA.
WESTERN DIPLOMATS IN NAIROBI HAVE ALSO COMPLAINED ABOUT THE PUBLIC ORDER ACT. IN APRIL, THEY ISSUED A JOINT STATEMENT EXPRESSING THEIR CONCERN THAT POLICE WERE VIOLATING FREEDOMS OF SPEECH AND ASSEMBLY BY BREAKING-UP OPPOSITION RALLIES.
FOREIGN MINISTER KALONZO MUSYOKA DISMISSED THAT CRITICISM AS OUTSIDE INTERFERENCE. HE SAID GOVERNMENT OPPONENTS WERE TRYING TO USE FOREIGN DIPLOMATS TO SCORE POLITICAL POINTS WITH VOTERS. BUT MR. MUSYOKA ALSO APPEARED TO SUGGEST THAT HE TOO FEELS THE PUBLIC ORDER ACT IS IN NEED OF REVISION.
ALL THE POLICE FORCE IS DOING IS ENFORCING THE LAW AS IT IS, AND I WANT TO EMPHASIZE THAT -- THE LAW AS IT IS -- NOT THE LAW AS IT OUGHT TO BE -- BECAUSE THIS APPARENTLY SEEMS TO BE THE PROBLEM THAT I THINK THE POLICE FORCE IS FACING. AND THOSE OF YOU WHO ARE STUDENTS OF JURISPRUDENCE WILL AGREE WITH ME THAT YOU CAN WRITE VOLUMES ABOUT WHAT THE LAW SHOULD BE AND WHAT THE LAW ACTUALLY IS.
RELIGIOUS LEADERS AND OPPOSITION POLITICIANS TESTED THE LAW AS IT ACTUALLY IS BY TRYING TO HOLD A PUBLIC RALLY (LAST) SATURDAY WITHOUT A PERMIT. THAT MEETING WAS BROKEN-UP WITH TEAR GAS AND RUBBER BULLETS AS HUNDREDS OF PEOPLE RAN THROUGH DOWNTOWN SMASHING WINDOWS AND OVERTURNING CARS.
THE FOLLOWING DAY, PRESIDENT DANIEL ARAP MOI PROMISED TO CHANGE THE LAW. HE SAID THE GOVERNMENT WILL SOON BRING TO PARLIAMENT A "PEACEFUL ASSEMBLIES" BILL TO REPLACE THE PUBLIC ORDER ACT.
THOUGH NOTHING IS KNOWN ABOUT THE NEW BILL, OPPOSITION LEADERS HAVE ALREADY DENOUNCED IT AS "WINDOW DRESSING." LAWYER PAUL MUITE SAYS HE SUSPECTS THE GOVERNMENT MAY SIMPLY CHANGE THE LICENSING AUTHORITY FROM PROVINCIAL ADMINISTRATORS TO THE POLICE THEMSELVES.
ALL GOVERNMENTS HAVE AN INTEREST IN PROTECTING PUBLIC SECURITY. MR. MUITE SAYS THE DIFFERENCE IS BETWEEN NOTIFYING THE POLICE ABOUT A DEMONSTRATION AND HAVING TO GET THEIR PERMISSION.
WE MUST REPEAL THE LICENSING PROVISIONS IN THE PUBLIC ORDER ACT WHICH REQUIRE THE LICENSING OF PEACEFUL GATHERINGS OR PEACEFUL DEMONSTRATIONS.
OPPOSITION LEADERS ARE CALLING FOR SWEEPING CONSTITUTIONAL CHANGES BEFORE ELECTIONS THAT PRESIDENT MOI MUST CALL BY THE END OF THE YEAR.
PRESIDENT MOI IS PROMISING TO APPOINT A CONSTITUTIONAL COMMISSION AFTER THOSE ELECTIONS, SAYING THE CURRENT ATMOSPHERE IN KENYA IS NOT CONDUCIVE TO SERIOUS AND MEANINGFUL DISCUSSION.
03-Jun-97
Source: Voice of America