Law Society of Kenya v Attorney General & another [2021] eKLR officer of or above the rank of inspector to stop or prevent the holding of a public meeting or procession in which there is clear, present or imminent danger of breach of peace or public order. Such officer is further empowered to give or issue orders, among others, for the dispersal of the meeting or procession, having regard to among others, freedoms of others. Failure to comply with such an order is an offence and any person who continues to take part in such meeting or procession is guilty of the offence of taking part in an unlawful assembly under Chapter IX of the Penal Code and is liable for imprisonment for one year. The offences with which the appellants were charged under the Penal Code, namely offensive conduct conducive to breaches of peace contrary to 94(1) of the Penal Code and taking part in a riot contrary to section 78 (1) and (2) as read with section 80 of the Penal Code are all in Chapter IX of the Penal Code. Those provisions must be read together with the Public Order Act in determining their constitutionality. Section 94 (1) of the Penal Code Provides Thus: 94.(1) Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is to be occasioned is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or both. (2) In this section “public gathering” means(a) Any meeting, gathering or concourse of ten or more persons in any public place; or (b) Any meeting or gathering which the public or any section of the public or more than fifty persons are permitted to attend or do attend, whether on payment or otherwise; or (c) Any procession in, to or from a public place.” On the other hand, section 78 of the Penal Code provides: 78. (1) When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighborhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly. (2) It is immaterial that the original assembling was lawful if, being assembled; they conduct themselves with a common purpose in such a manner as aforesaid. (3) When an unlawful assembly has begun to execute the purpose for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled. In this appeal the appellants duly complied with the notification requirement of the Public Order Act and it is common ground that the meeting or procession started peacefully with police escort but was stopped and the appellants arrested after it became rowdy following the deployment of pigs and occupation of the streets by the appellants. It is not for us to determine whether appellants’ conduct constituted offensive conduct conducive to breaches of peace or taking part in a riot. The issue before us is whether the arrest of the appellants was a violation of their freedom of assembly, demonstration, picketing, petition and by extension association and expression, and whether the provisions of the Public Order Act and the Penal Code that allow the police to stop a public meeting or procession and to prosecute them are unconstitutional. While it is true that the High Court did not undertake the sequential analyzing required by Article 24 before determining whether the impugned provisions of the Public Order Act and the Penal Code are unconstitutional, a plain reading of that Act and the Code against Articles 24 and 37 does not persuade us that impugned provisions are unconstitutional. As we have noted, the freedom of assembly, demonstration, picketing and petition guaranteed by Article 37 is circumscribed by the express requirement of the Constitution that it must be enjoyed peacefully and by persons who are unarmed. The issue before the trial court will be whether the appellants conducted themselves in a public place in a manner that was not peaceful. The Public Order Act allows citizens to freely assemble, demonstrate, picket and petition authorities subject to the notification requirement. In our estimation the notification requirement is a reasonable measure for the police to ensure that the meeting or http://www.kenyalaw.org - Page 13/34