APPLICABILITY OF THE HARAMBEE PHILOSOPHY IN THE ACTUALIZATION OF ARTICLE 37 OF THE CONSTITUTION OF KENYA 2010
Authored by: Grace Gakii Mutwiri
ABSTRACT
Our motto ‘harambee’ was conceived in the realization of the challenges of nation building, the Government and People of Kenya had to pull together in order to meet this challenge. It was more than a motto for it symbolized Kenyan Unity and patriotism. From the Late Mzee Jomo Kenyatta to the Late Former President Daniel Arap Moi, they frequently evoked Harambee during their regimes which enabled them to push many ambitious government-wide initiatives which we still benefit up to date. In the current era, Harambee can be demonstrated in fundraising events to cater for medical bills, to pay for a child’s school fees so as to have access to education. In the recent past weeks, I have seen the dynamic change in what we regard as Harambee. The ‘Gen Z’ have set a revolution that has actualized Harambee in promoting Article 37 of the Constitution of Kenya 2010. From creating civic education both in online platforms as well as physical platforms, to catering for medical bills to their fellow peers who were injured during the protests etc., they have brought a new wave in how demonstrations and protests are done in Kenya. This paper will delve into some of the aspects that have promoted Article 37 of the Constitution of Kenya while using the Harambee Philosophy.
INTRODUCTION
A Harambee is a type of self-help event that’s deeply ingrained in the moral compass of a country, it represents an unwritten law of generosity and regardless of class, ethnic group, gender or religious background will lend a hand to assist anyone in need. [1] It can be seen as a means of expressing itself so long as there is a group engaged in a common task regardless of the immediate beneficiaries of the group efforts, regardless of the socio-economic composition of the group and regardless of the nature of the benefits i.e. regardless of whether the benefits are private or public to use sociological terms. [2]
It is indubitable to say that the Harambee Philosophy is used in the Modern Day during public protests/demonstrations so as to challenge the injustices as well as to question the legitimacy of those in power as well as their policies. However, the main concern is how such protests are conducted so as to ensure abidance to the Rule of Law as well as guarantee respect and protect human rights and fundamental freedoms.
Right to Peaceful Assembly in Kenya
Article 21 of the International Convention on Civil and Political Rights recognizes the right to peaceful assembly and emphasizes that no restrictions may be placed on the exercise of the right other than those imposed in conformity with the law and which are necessary in a democratic society in the interest of national security, public safety, public order or protection of public health, morals or the protection of the rights and freedom of others. The same sentiments are expressed in Article 11 of the African Charter on Human and Peoples’ Rights.
In Coalition for Reforms and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] [3] outlined requirements that must be satisfied to fulfil Article 24 of the Constitution of Kenya 2010 which limits Article 37 as long as it is reasonable and justifiable in an open and democratic society. In Ferdinand Ndung’u Waititu v Attorney General Justice Joseph Onguto observed the following;
“…the right to assemble, demonstrate, picket and petition as enshrined under Article 37 is not absolute. Demonstrators, picketers and petition-presenters must do so ‘peaceably and unarmed’. Assemblies, picketing and demonstrations which are not peaceful are excluded from the protection of Article 37 if they consist of violence to or intimidation of the public then the assembly or the demonstration ought to be stopped. Likewise, participants in assemblies, picketers and demonstrators must not be armed. The ‘spirit of the Constitution-claw back’ is to ensure that the rights of others within the vicinity of the place of assembly or of the demonstrators are also not interfered with.” [4]
Section 5 of the Public Order Act requires any person intending to convene a public assembly to give the police between at least three days and not more than fourteen days’ notice. However, a police officer may stop or prevent the holding of any public gathering, meeting or procession which have regard to the rights and interests of the persons participating in such if there is clear, present or imminent danger of a breach of peace or public order, may give an issue/order for the dispersal of the meeting are reasonable in the circumstance present. [5]
Correlation between Harambee Philosophy and Article 37 of the Constitution of Kenya 2010
During the promulgation of the 2010 Constitution, Former President Mwai Kibaki once more awakened the spirit of Harambee to embrace a new national spirit of inclusiveness, tolerance, harmony and unity so as to build a nation that will be socially and economically. [6] The 2010 Constitution acknowledged that all sovereign power belongs to the people of Kenya and may be exercised either directly or indirectly through their democratically elected representatives. [7] If members of public are dissatisfied with their elected representatives, they can highlight their grievances either by recalling their representatives under Article 104 (1) or can hold demonstrations/protest to express their grievances through Article 37.
In the current era, the spirit of Harambee has been embraced during protests/ demonstrations by condemning violations of human rights while exercising the right to assembly, demonstrate, picket and petition. All participants in assemblies must be protected against violence, intimidation, harassment, surveillance and reprisals, if a state or a non-state actor advocates/supports acts of violence against persons or groups exercising their rights to freedom of peaceful assembly must be held accountable for such violations. [8]
In the recent ‘Maandamano’ a sense of unity was displayed to ensure that all who participated in the demonstrations were taken care of from medical practitioners offering free medical services to the injured protestors, lawyers offering pro-bono services, restaurants offering food and water to the protestors, online bloggers promoting public awareness in their various platforms and many more which brought the new spirit of Harambee.
CONCLUSION
As the ‘Gen Z’ Movement continues to advocate for good governance and accountability from the Government, it should embrace the spirit of Harambee for it to achieve its agenda for where there is unity there is always victory.
REFERENCES
Nice work Wakili
ReplyDeleteSuch a wholesome insight. You're well informed.
ReplyDeleteWell articulated wakili, keep up!
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