Law Society of Kenya v Attorney General & another [2021] eKLR (9) Any person who neglects or refuses to obey any order given or issued under subsection (7) shall be guilty of an offence. (10) Any public meeting or public procession held contrary to the provisions of subsections (1) and (5) shall be deemed to be an unlawful assembly. (11) Any person who takes part in any public meeting or public procession deemed to be an unlawful assembly under subsection (10), or holds, convenes or organises or is concerned in the holding, convening or organising of any such meeting or procession shall be guilty of the offence of taking part in an unlawful assembly under Chapter IX of the Penal Code and liable to imprisonment for one year. (12) The organiser of any excluded meeting may request the regulating officer that the police be present at such meeting to ensure the maintenance of peace and order. (13) A request under subsection (12) shall be in writing and shall be delivered to the regulating officer at least three days before the proposed date of the meeting. 110. Sub-section 1 of the impugned provision mandatorily provides that no one can hold a public meeting or a public procession except in accordance with the provisions of the impugned section. I take offence with this provision for two reasons. First, the provision negates the supremacy of the Constitution as envisaged in Article 2 of the Constitution in that even though the Constitution variously provides for the manner in which some rights and fundamental freedoms touching on holding of public meetings and processions, may be exercised, the impugned sub-section 1 tends to, mandatorily so, contend that it is only that provision that applies to public meetings and processions. Two, the provision also negates any other law from applying to public meetings and processions. 111. Unlike the Order Act, the Police Act is very deliberate in the manner in which the said Act either captures various constitutional provisions verbatim or the spirit of the Constitution. For instance, Section 3 of the Police Act provides the objective of the Act as to give effect to inter alia the provisions of Articles 238, 239, 243, 247 and 244 of the Constitution. Sub-section 1, therefore, tramples upon the Constitution and the law. 112. Sub-section 3(b) of the impugned provision restricts the holding of meetings and processions to between six o’clock in the morning and six o’clock in the afternoon. In effect, the provision excludes the holding of peaceful public meetings between six in the afternoon and five in the morning. 113. Section 2 of the Order Act defines a “public meeting” to mean any meeting held or to be held in a public place, and any meeting which the public or any section of the public or more than fifty persons are or are to be permitted to attend whether on payment or otherwise. A “public place” is defined to mean any place to which for the time being the public or any section of the public are entitled or permitted to have access whether on payment or otherwise, and, in relation to any meeting to be held in the future, includes any place which will, on the occasion and for the purposes of such meeting, be a public place. 114. The Order Act applies to all public meetings. It does not make any exceptions at all. Given the wording of sub-section 3(b), it follows that the Order Act criminalizes public meetings held at night. Therefore, meetings such as overnight prayer meetings in Churches and prayers in mosques at night and early mornings stand outlawed since Churches and mosques are public places. In fact, sub-section 10 qualifies such meetings as unlawful assemblies. 115. The sub-section is, therefore, a serious affront to various rights and fundamental freedoms including the rights under Article 32 (freedom of conscience, religion, belief and opinion), Article 36 (Freedom of Association), Article 37 (Right to assembly), Article 39 (Freedom of movement) among others. 116. Further, the definition of a ‘public meeting’ discriminates between meetings of less than 50 members from those of more than 50 members. According to the definition, a meeting of less than 50 persons cannot be deemed as a public meeting. However, a meeting of 51 members or more is deemed as a public meeting. The differentiation is not justifiable in an open and democratic society based on human dignity, equality and freedom. The provision infringes Article 27 of the Constitution. 117. Sub-section 4 of the impugned provision provides for only one reason where a regulating officer may decline to allow a public http://www.kenyalaw.org - Page 30/34