- This precedent established what constitutional scholars call the “rights-protective approach” to constitutional interpretation, where courts lean toward expanding rather than restricting fundamental rights.
- Unlike the minimalist approach taken by some constitutions, which simply guarantee “freedom of assembly,” Kenya’s Constitution provides granular protection for specific forms of democratic participation including demonstration, picketing, and petition.
- The ultimate measure of Article 37’s success will not be found in court decisions alone but in its capacity to foster what John Dewey called “the public and its problems” a vibrant civic culture where citizens actively engage with public issues rather than retreating into private concerns.
The constitutional architecture of modern democratic states finds its strength not merely in the separation of powers or the establishment of institutions, but fundamentally in the sacred space carved out for citizen participation in governance. Article 37 of Kenya’s 2010 Constitution stands as a testament to this principle, enshrining what James Madison might have recognized as the “republican genius” of popular sovereignty. The provision states unequivocally that “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”
This seemingly simple articulation masks a profound constitutional innovation that transforms citizens from mere subjects into active agents of democratic accountability. The provision’s placement within Chapter Four’s Bill of Rights underscores its fundamental character, positioning peaceful assembly not as a privilege to be granted by the state, but as an inherent right that predates governmental authority a philosophical position that echoes John Locke’s natural rights theory and finds contemporary expression in the jurisprudential tradition of purposive constitutional interpretation.
The historical trajectory that birthed Article 37 cannot be divorced from Kenya’s tumultuous struggle for democratic governance, a narrative that reads like a compressed version of humanity’s broader quest for freedom from arbitrary power. The colonial experience, with its systematic suppression of indigenous political expression, created what Ngugi wa Thiong’o termed “the violence of silence” a forced political muteness that pervaded the post-independence era through various Emergency Powers Acts and Public Order Acts that treated peaceful assembly as a threat rather than a democratic necessity.
The drafters of the 2010 Constitution, drawing from both the bitter lessons of authoritarian excess and the global human rights discourse that had matured since the adoption of the Universal Declaration of Human Rights in 1948, consciously rejected the Hobbesian notion that security required the sacrifice of liberty. Instead, they embraced what constitutional scholar Yash Ghai has characterized as “transformative constitutionalism” a constitutional framework that seeks not merely to prevent tyranny but to actively facilitate democratic participation. This historical consciousness is embedded in Article 37’s language, which deliberately uses expansive terms like “every person” rather than limiting the right to citizens, reflecting an understanding that democratic legitimacy depends on inclusive participation rather than exclusionary citizenship.
The jurisprudential landscape surrounding Article 37 reveals the complex tension between constitutional aspiration and administrative reality, a dialectic that has played out dramatically in Kenya’s courts since 2010. While direct challenges to Article 37 have been relatively rare, its interpretation has been shaped by broader constitutional principles established in landmark cases such as Francis Karioko Muruatetu and Another v. Republic, where the Supreme Court’s declaration of the mandatory death penalty as “unconstitutional” demonstrated the Court’s willingness to prioritize constitutional rights over statutory provisions.
This precedent established what constitutional scholars call the “rights-protective approach” to constitutional interpretation, where courts lean toward expanding rather than restricting fundamental rights. The principle articulated in Muruatetu that constitutional rights must be given substantive rather than formal meaning has profound implications for Article 37 jurisprudence. It suggests that courts should interpret the right to peaceful assembly broadly, requiring the state to demonstrate compelling justification for any restrictions. This approach finds theoretical support in Ronald Dworkin’s concept of “rights as trumps,” where fundamental rights cannot be overridden merely for administrative convenience or general social utility.
The constitutional text of Article 37 reveals sophisticated drafting that balances democratic participation with legitimate state concerns about public order, employing what constitutional theorists call “internal limitations” rather than external restrictions. The requirement that assembly be “peaceful and unarmed” does not represent an afterthought or compromise but reflects deep philosophical thinking about the nature of democratic discourse. Hannah Arendt’s insight that “power corresponds to the human ability not just to act but to act in concert” finds expression in this provision’s recognition that collective action is inherently powerful and therefore requires careful constitutional channeling.
The word “peaceably” draws from centuries of Anglo-American constitutional tradition, finding its roots in the English Bill of Rights of 1689 and achieving mature expression in the First Amendment to the United States Constitution. However, the Kenyan formulation goes beyond its historical precedents by explicitly including “demonstration,” “picketing,” and “petition,” activities that were often regulated or prohibited under colonial and early post-independence law. This semantic expansion reflects what Amartya Sen calls “reasoned freedom” the idea that democratic participation requires not just negative liberty (freedom from interference) but positive liberty (the actual capability to participate meaningfully in public discourse).
The enforcement mechanisms and institutional framework supporting Article 37 reveal both the strengths and vulnerabilities of constitutional rights protection in Kenya’s evolving democracy. The Constitution places “a positive obligation on the State to facilitate and protect a peaceful exercise of the Article 37 rights,” a formulation that goes beyond the traditional negative rights approach to embrace what constitutional scholars call “horizontal application” of rights. This means that the state cannot simply refrain from interfering with peaceful assembly; it must actively create conditions that make such assembly possible and meaningful.
The theoretical foundation for this approach can be traced to Isaiah Berlin’s famous distinction between negative and positive liberty, but its practical implementation draws from the German Constitutional Court’s concept of “objective value order” (objektive Wertordnung), where constitutional rights represent not just individual entitlements but foundational values that shape the entire legal system.
The Kenya National Commission on Human Rights, established under Article 59 of the Constitution, serves as a crucial institutional guardian of Article 37 rights, though its effectiveness depends on political will and resource allocation. The Commission’s mandate to “monitor, investigate and report on the observance of human rights” creates what Jeremy Bentham would have recognized as a “publicity principle” the idea that exposing governmental conduct to public scrutiny serves as a powerful check on arbitrary power.
The contemporary challenges facing Article 37 implementation reflect broader tensions in 21st-century democracy between security imperatives and participatory governance, tensions that have been exacerbated by global concerns about terrorism, public health emergencies, and social media-facilitated mobilization. Recent events, including the 2024 nationwide protests, have tested the constitutional framework, with Amnesty International noting the need for “law enforcement and military officials to honour” Article 37 protections.
These challenges illuminate what Carl Schmitt identified as the “exception” that tests constitutional norms moments when the ordinary operation of law confronts extraordinary circumstances. However, the Kenyan Constitution’s approach to emergency powers, particularly Article 58’s strict limitations on states of emergency, suggests a conscious rejection of Schmittian decisionism in favor of what John Rawls called “constitutional consensus”—the idea that even in crisis, certain principles remain non-negotiable.
The rise of digital platforms for organizing protests presents novel interpretive challenges for Article 37, as traditional concepts of “assembly” and “demonstration” encounter virtual spaces where physical presence may be supplemented or replaced by digital coordination. This technological evolution requires what Lawrence Lessig calls “constitutional translation”—the adaptation of enduring principles to new technological contexts without sacrificing their essential meaning.
The comparative constitutional dimension of Article 37 reveals Kenya’s contribution to the global evolution of assembly rights, positioning the 2010 Constitution as part of what constitutional scholars call the “fourth wave” of democratization characterized by increasingly sophisticated rights protection mechanisms.
Unlike the minimalist approach taken by some constitutions, which simply guarantee “freedom of assembly,” Kenya’s Constitution provides granular protection for specific forms of democratic participation including demonstration, picketing, and petition. This specificity reflects lessons learned from South Africa’s post-apartheid constitutional experience, where general rights guarantees sometimes proved insufficient to protect vulnerable forms of political expression.
The explicit inclusion of “picketing” acknowledges the crucial role of labor activism in democratic societies, drawing from the rich tradition of workers’ rights movements that shaped 20th-century democracy. The protection of “petition” rights connects Article 37 to ancient constitutional traditions stretching back to Magna Carta’s recognition of the right to seek redress from authority, while simultaneously embracing modern understanding of citizen-government dialogue. This comprehensive approach finds theoretical justification in Jürgen Habermas’s concept of the “public sphere”—the social space where citizens come together to debate public concerns and form public opinion that can influence political action.
The interpretive principles that should guide Article 37 jurisprudence emerge from both Kenya’s constitutional traditions and universal principles of democratic governance, requiring what Joseph Raz calls “inclusive interpretation” that considers both textual meaning and constitutional purpose. The Supreme Court’s approach in Muruatetu, emphasizing purposive interpretation that gives life to constitutional values, provides a methodological framework for Article 37 cases.
Courts should apply what Ronald Dworkin termed “law as integrity,” reading Article 37 in harmony with other constitutional provisions while maintaining its distinctive character as a democratic participation right. The principle of proportionality, borrowed from German constitutional law and increasingly influential in Commonwealth jurisdictions, offers a structured approach to balancing assembly rights against competing interests such as public safety or property rights. This requires courts to examine whether restrictions on Article 37 rights are suitable (appropriate to achieve the stated aim), necessary (the least restrictive means available), and proportionate in the narrow sense (the benefits outweigh the costs).
The burden of justification should rest heavily on the state, reflecting what constitutional theorists call the “presumption of constitutionality” in favor of rights rather than restrictions. Additionally, courts should embrace what Aharon Barak calls “constitutional dialogue,” engaging with international human rights jurisprudence while remaining rooted in Kenya’s specific constitutional text and democratic aspirations.
The transformative potential of Article 37 extends far beyond its immediate application to protests and demonstrations, embodying what Roberto Unger calls “institutional imagination” the capacity to envision and create new forms of democratic participation that transcend traditional boundaries between state and society. In an era where democratic legitimacy faces unprecedented challenges from populist authoritarianism, technocratic governance, and economic inequality, Article 37 offers a constitutional foundation for what Archon Fung and Erik Olin Wright term “empowered participatory governance” institutional arrangements that enable ordinary citizens to participate meaningfully in decisions that affect their lives.
The provision’s protection of petition rights, in particular, opens space for innovative forms of citizen engagement that could revitalize democracy by making governmental responsiveness a constitutional requirement rather than a political courtesy. As Kenya grapples with the challenges of sustainable development, climate change, and technological disruption, Article 37 provides a constitutional framework for ensuring that affected communities have meaningful voice in policy processes.
The ultimate measure of Article 37’s success will not be found in court decisions alone but in its capacity to foster what John Dewey called “the public and its problems” a vibrant civic culture where citizens actively engage with public issues rather than retreating into private concerns. In this light, Article 37 represents not just a constitutional provision but a democratic covenant between the Kenyan people and their future, promising that the hard-won freedom to speak truth to power will remain inviolate regardless of political winds or governmental preferences.
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The writer is a legal researcher and lawyer
