MATIANGI MUST RESIGN FOR GROSS INCOMPETENCE AND SUBVERSION OF THE LAW
Our attention has been drawn to a statement by the Ag. Cabinet Secretary for Interior Mr. Fred Matiangi in which he purports to ban NASA’s constitutionally guaranteed peaceful assembly.
We wish to draw the Cabinet Secretary’s attention to Article 37 of the Bill of Rights enshrined in Chapter Four of the Supreme Law of the land which states that “every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”
Moreover, Justice Lenaola in his ruling in Petition 285 of 2013: Mike Sonko vs the AG, held that mass action was constitutionally provided under Article 37 of the Constitution. Therefore, any action by the CS to purport to ban mass action is therefore unconstitutional.
As a Coalition that respects the rule of law, we have followed all the provisions of the Public Order Act in our demonstrations issuing notification the police in sufficient time for them to provide security for both demonstrators and the general citizenry. (See attached)
The CS has on multiple occasions failed to perform his duties and now seeks to shift responsibility to ordinary citizens to provide security.
Since when did Government with its entire monopoly of violence (guns, bullets, teargas, handcuffs, and so on) cede its responsibility to wananchi? The police cannot abscond duty and then turn around to ask wananchi to take over liability for police failure.
It would serve the CS well to remember that this matter was litigated last year in Petition 169 of 2016 heard before Justice Onguto. In the ruling, the Public Order Act (Cap 56) contrary to popular views does not limit the right to demonstrate or to assemble. It instead seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order.
It further found that though protest processions or marches can turn unruly, that does not impinge on the right to assemble, demonstrate and picket for the basic reason that the Constitution is supreme. The right to picket and to demonstrate, which an essential feature of any democratic society is, ought to be protected especially where it is shown that the marches often start as peaceful ones.
Mr Matiangi must therefore explain why the Government handed over the security of Nairobi to the unauthorized Nairobi Business Community. And if he cannot satisfactorily answer this question, then he must tender his resignation without any further delay!
Furthermore, pursuant to Article 245 of the Constitution and section 24 of the National Police Service Act (Cap 84), the Police is obligated to ensure that law and order is maintained and additionally that there is a preservation of peace. The Inspector General of Police is duty bound to observe, comply with and promote constitutional standards of human rights and fundamental freedoms. In the end, the judge issued a mandatory order compelling the Police to ensure security, public safety and observance of the law and order by demonstrators whenever and wherever they picket or demonstrate pursuant to any notification given to the police under the Public Order Act.
To our surprise and consternation, Kenyans woke up to an image on the front page of The Star newspaper of an innocent demonstrator being ran over by the very police that are meant to provide security. Our policemen have now become agents of terror! And up until now, we have had no comment on this grave violation of public trust from either Matiangi or indeed, the Inspector General of Police; there have been no arrests or recording of statements. To make matters worse, in his utterances today, Mr Matiangi seeks to criminalize legal political activity and we wish to categorically state, that we shall hold him personally responsible should any harm come to the CEO of the NASA Secretariat Mr. Norman Magaya following the CS’s reckless threats and intimidation.
We therefore give notice to our supporters that we will proceed with our constitutionally guaranteed demonstrations as planned throughout the country and call upon the police to provide security as is their responsibility in law!
Signed and dated,
NASA JOINT PARLIAMENTARY GROUP.
Thursday, October 12, 2017