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12 Constitutional Rights That Can Be Denied by Constitutional Right 37 Demonstrations

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Kenya Constitution protecting rights and advancing Kenya forward Kenya Constitution protecting rights and advancing Kenya forward

Kenya Constitution 37 reads, “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” The exercise of this right can deny other constitutional rights if not exercised, peaceably and unarmed. Parliament through legislated laws as provided by Constitution article 24 can ensure that constitutional 37 right when exercised does not deny other rights and when those exercising rights infringe on others rights there are penalties.

12 Constitutional Rights that can be denied by demonstrations  

1. Constitution, Right 26. (1) Every person has the right to life.

The right to life as established in article 26 of the constitution is the most important right to all citizens. Kenya constitution first responsibility is to protect the right of life. Demonstrations that are violent and threaten any Kenyan with their right to life should never be tolerated and should be denied.

Demonstrations started after Elections results that led to violation of the right to life could have been avoided by following Constitution 140.   

2. Constitution, Right 27. (1) Every person is equal before the law and has the right to from discrimination. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

When enjoying the constitutional right as established in article 37, persons cannot restrict or deny any other person their rights. If persons exercising their constitutional right 37 block a road they by doing so violate the constitutional equal rights law.

Demonstrators should never assume their right to demonstrate as provided in article 37 is superior to someone’s right to be free from hunger article 43 or Right to life in article 26.   

3. Constitution, Right 28. Every person has inherent dignity and the right to have that dignity respected and protected.

When exercising the right in article 37 those exercising the rights cannot disrespect others. Example of disrespect per Media report, “Earlier, rioters had also harassed motorists, extorting money from them and forcing the police to disperse them with tear gas.”

Rioters should not infringe on others rights.  

4. Constitution, Right 29. Every person has the right to freedom and security of the person, which includes the right not to be— (a) deprived of freedom arbitrarily or without just cause.

Demonstrations can deny freedom arbitrarily or without just cause when persons demonstrating decide block streets, harass others, loot, steal or destroy property.

5. Constitution, Right 29. Every person has the right to freedom and security of the person, which includes the right not to be— (c) subjected to any form of violence from either public or private sources.

Demonstrations under 37 by private citizens should not deny freedom and security of others. Just like the police should not deny the right of demonstrators exercising their right 37; demonstrators cannot attack police, any person, public property or private property.  

6. Constitution, Right 29. Every person has the right to freedom and security of the person, which includes the right not to be— (d) subjected to torture in any manner, whether physical or psychological.

Demonstrations under right 37 that result to torture of citizens physically or psychologically should not be tolerated. Blocking of roads creates a psychological torture to a parent who has to pick their child from school and a child who is put at risk by the demonstration. Demonstrations geared toward economic hardship are both a physical torture as well as a psychological torture. Demonstrators who steal a persons goods and even time cause both physical and psychological pain as they rod someones capital. 

7. Constitution, Right 29. Every person has the right to freedom and security of the person, which includes the right not to be— (f) treated or punished in a cruel, inhuman or degrading manner.

Demonstrations under right 37 that lead to cruel punishment to persons not involved in the demonstrations violate the rights of those who find themselves punished in a cruel, inhuman and degrading manner.  

8. Constitution, Right 39. (1) Every person has the right to freedom of movement.

Demonstrations under right 37 should not be directed toward limiting any person’s freedom of movement from one place to another. Whereas citizens can tolerate a delay of as a peaceful, unarmed possession crosses an intersecting road, a demonstration that blocks a road should never occur for it would deny the freedom of movement.    

9. Constitution, Right 42. Every person has the right to a clean and healthy environment….

Burning of tires pollutes the air and exposes persons to polluted air. This infringes on persons rights to clean air and a clean environment.   

10. Constitution, Right 43. (1) Every person has the right— (c) to be free from hunger, and to have adequate food of acceptable quality.

Demonstrations through article 37 should not in any way deny persons from meeting their food rights. A person who is a producer of food when taking the food to the market cannot be restricted by a demonstration. A supplier of food through a business cannot be restricted by demonstrators exercising the right of 37. A consumer cannot sleep hungry because those exercising the right 37 disrupted the food supply process.   

11. Constitution, Right 43. (1) Every person has the right— (f) to education.

Persons exercising their demonstration right should not deny others their right to education as established in article 43. Demontrations that disrupt the education of a person deny the right to education.  

12. Constitution, Right 43. (2) A person shall not be denied emergency medical treatment.

Persons exercising their demonstration right should not deny others their right to emergency treatment as established in article 43. All public roads should be accessible to emergency treatment without restrictions from demonstrators if the right to emergency medical treatment shall not be denied.   

Right 37 Exercise without Infringement of Rights 26, 27, 28, 29, 39, 42, 43… 

Right 37 can be protected by ensuring it does not limit or infringe on other Individual rights through legislation as provided for in Kenya Constitution Article 24. 

Constitution, Law 24. (1) A right or fundamental freedom in the Bill of Rights and fundamental shall not be limited except by law, and then only to the extent that the freedoms limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including–– (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental  freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. 

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom— (a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

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