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The Communist Party of Kenya (CPK) wishes to make its representation concerning the intended amendment of the Public Order Act, through the Public Order (Amendment) Bill (National Assembly Bill No. 14 of 2019).

The Bill intends to insert subsections 11A and 11B under section 5 of the Act.

 

With regards to subsection 11A, we wish to state as follows:

 

That while the subsection seeks to punish “grievous harm, damage to property or loss of earnings” that are caused during public meetings or public processions, the Party objects to the inclusion of the term “loss of earnings” since it lacks a clear definition, is vague and is too broad. This vagueness and broadness may cause interpretation that offends article 24 of the Constitution of Kenya since it may lead to subjectivity and misuse by the national security agencies.

 

The Party proposes that the term “loss of earnings” be deleted from subsection 11A.

 

With regards to subsection 11B, the Party wishes to state as follows:

 

That the subsection seeks to punish organisers of public meetings and processions if an individual who participated in the meeting/procession is convicted for offences mentioned in subsection 11A.

 

The Party wishes to strongly oppose the shifting of any responsibility to the organisers of public meetings/processions for the following reasons:

 

1. Public meetings and processions are a Constitutional right. The attempt to shift responsibility of an individual who breaks the law to an individual who has exercised his/her constitutional right in the correct manner is a direct infringement on the latter’s right to enjoy his/her rights. This shift of responsibility will have the effect of preventing patriotic Kenyans from exercising their civil/political rights for fear of being blamed for what they have not done.

 

2. It is the principal duty of the police and other law enforcement agencies (including the National Intelligence Service) to enforce the law and to arrest those who commit crimes. This principal duty cannot be transferred to the organisers of public meetings/processions.

Furthermore, a crime only becomes a crime when it is being or it has been committed. This subsection seems to suggest that organisers of public meetings/processions can somehow get into the minds of potential criminals and therefore somehow prevent the crime from happening. This is not only absurd but is also unconstitutional.

 

3. Criminal culpability is personal. It is not transferable.

 

4. If such an absurd proposal was to become law, then it would be prone to misuse by political opponents, criminals, as well as rogue law enforcers. The Kenyan Police have been known to use agent provocateurs in attempts to turn peaceful demonstrations into violent ones. It is highly likely that the Police or political opponents would plant individuals to cause chaos so as to ruin the reputation, credibility, and now add criminal responsibility on their political opponents and patriotic citizens.

 

5. The Penal Code already guides the courts on how to treat those convicted, and this also includes compensation for the victims. The Penal Code, and rightly so, places this responsibility on the convict, and not on other people as this proposed amendment seeks to do.

 

Our recommendation is that subsection 11B should be removed from the amendment altogether.

 

Lastly the Party proposes that the National Assembly should pass a law that heavily punishes any police officer, police commander, public administrator or any Public/State Officer who violates the right to peaceably demonstrate, assemble, picket and present petitions as enshrined under article 37 of the Constitution. Other than violating the supreme law of Kenya; many peaceful meetings/processions become chaotic when the police violently break them up by use of tear gas, violence and bullets. It is during such chaos that criminal elements in the society take advantage of the confusion caused and go ahead to loot, rob and cause grievous harm both to the participants of the meeting/procession and to the members of the public.

 

Yours faithfully,

 

Benedict WACHIRA

Secretary General

May 8, 2019

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