The Supreme Court on Friday, April 12, dismissed a significant petition that sought an advisory opinion regarding the country's protest rights, quashing the hopes of many.
This ruling comes at a time when political tensions and civil unrest have left a trail of destruction, significantly affecting business owners.
The petition, filed by the civil rights organisation Kituo Cha Katiba, sought the Court's guidance on several aspects of Article 37 of the Constitution, which guarantees every person the right to assemble, demonstrate, picket, and petition peacefully and unarmed.
The request was made in light of the recent protests orchestrated by the Azimio la Umoja One Kenya Coalition in 2023, which were marked by extensive property damage, clashes with police, and several deaths.
Under the counsel of Dr. John Khaminwa, Kituo Cha Katiba asked the Court important questions concerning the rights to protest, the state's interference with those rights, and the responsibility of the state for any losses or damages sustained during those events.
However, the response from the Attorney General, representing the government, argued firmly against the Court's jurisdiction to grant an advisory opinion to a non-governmental organisation, citing precedents that defined which entities could request such opinions under Article 163(6) of the Constitution.
Deputy Chief Justice Philomena Mwilu, alongside Justices Njoki Ndungu, Smokin Wanjala, and Isaac Lenaola upheld this perspective, determining that Kituo Cha Katiba did not meet the necessary criteria as a state organ or government entity, thus invalidating their request for an advisory opinion.
This decision has profound implications, especially as Azimio la Umoja has announced plans to intensify protests in response to the escalating cost of living and the controversial implementation of the Nadco Report.
Dr. Khaminwa, in his submissions, advocated for a broader interpretation of the term "person" within the context of both national and county governance frameworks. He cited several legal dictionaries to reinforce his arguments, contending that the organisation's petition fell within the legal entitlements of the citizenry, albeit indirectly represented through their institutions.
Despite these assertions, the Court delivered a clear and resolute ruling. The Justices underscored that only the national government, a state organ, or a county government possessed the direct authority to solicit an advisory opinion on matters pertaining to county governance.
This stringent interpretation effectively restricts access for numerous organisations and groups seeking judicial clarification on constitutional provisions, particularly those pertaining to civil rights and public demonstrations.
For now, Kenyans who have suffered losses during the protests have been left with few options, relying on the general legal system for any recourse rather than obtaining direct guidance from the highest court on these pressing national issues.
