Constitutional right of free assembly

This petition sought, inter alia, a declaration that the fundamental right, under article 37 of the Constitution of Kenya, to assemble, demonstrate, picket, and present petitions to public authorities was conditional on the protestors or demonstrators conducting themselves peaceably and unarmed.  It also sought orders directing the respondents to formulate and/or amend the requisite law and regulations to ensure that demonstrations were peaceful and held as per the Constitution.

This was an appeal against the decision of the High Court to dismiss the petition of the appellants, 16 members of the Occupy Parliament Movement, contending that their arrests and continued prosecution because of demonstrations that they had held were unconstitutional.

This matter came to the Constitutional Court for confirmation of an order of the High Court that declared section 126B of the Defence Act 44 of 1957 (the Act) as unconstitutional; for prohibiting members of the South African National Defence Force (SANDF) from participating in public protests and joining trade unions. The Constitutional Court thus determined whether section 126B of the Act was a justifiable limitation of the applicant’s, SANDF, freedoms of expression, association and assembly.