CommentaryMany people, especially ignorant people, want to punish you for speaking the truth, for being correct, for being you. Never apologize for being correct, or for being light years ahead of your time. If you are right and you know it, speak your mind. Speak your mind. Even if you are a minority, the truth is still the truth. —Mahatma Gandhi 1869-1948
Throughout history people have come out in numbers to demonstrate against various issues—from citizens fighting for their rights in the French Revolution to the Philippines’ People’s Power revolution overthrowing Ferdinand Marcos’s dictatorship in 1986. In Africa, demonstrations were used when people demanded independence from their colonizers. People have protested for LGBTQ+ rights and abortion rights and against high costs of living and poor governance. It would not be far-fetched to declare that the right to protest is a very important aspect of our society.
The right to protest is enshrined in various international treaties such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Article 21 of the ICCPR states that the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and that are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. To further emphasize this point article 20 of the UDHR that states that everyone has the right to freedom of peaceful assembly and association.
If one relied on these laws, they would assume the right to protest is respected all over the world. However, is that truly the case? Do the governments of countries globally respect the right to peaceful demonstrations? Are people actually allowed to peaceful demonstrate without fear of being arrested or, worse, killed? Most importantly, relying on recent legal developments, do protests actually bring about change anymore?
To answer these questions, we will focus on Kenya and Ghana—two countries that are no strangers to demonstrating. This year, there was a wave of demonstrations in Kenya from March to the end of July, while in Ghana, demonstrations have been taking place since September.
Demonstrations in Ghana
Ghana, a former British colony and one of the first African nations to gain independence, in 1957, experienced five short-lived written constitutions and six military governments between 1960 and 1992. Protests and mass grassroots movements led by courageous individuals with a pious dedication to the betterment of the nation, have shaped the events culminating in this structurally perceived democracy. These movements yielded positive results, and Ghana has since then been a stable democracy with multiple peaceful transitions of power. However, recent developments may indicate a change in direction, as people have begun taking to the streets to protest. It is important to understand the past to discuss contemporary movements.
Historically, Ghana’s protests can be divided into epochs. The pre-independence era saw the rise of nationalism, anti-colonial protests, and Pan-Africanism. For instance, the struggle for independence was marked by various protest movements, including the formation of the United Gold Coast Convention (UGCC) and the Convention People’s Party (CPP), led by Kwame Nkrumah. The most notable was the “Positive Action” campaign led by Kwame Nkrumah, which played a crucial role in achieving independence in 1957.
Philosophers such as Frantz Fanon have emphasized the idea that violent resistance can be a valid and sometimes necessary means for colonized peoples to break free from colonial oppression. Fanon’s work, especially his seminal book The Wretched of the Earth, iterates this idea, arguing that violence can be a cathartic release for the oppressed and a means to reclaim their humanity. Although Fanon’s stance may not be politically correct today, even in civilized societies, human inclination can override perceived orderliness.
Returning to Ghana in the present, the return to multi-party democracy in 1992 marked a new era of political engagement. Since then, various protest movements have addressed issues such as electoral irregularities, human rights, and governance. Notably, Ghanaian law students carved out a place for themselves in history in 2019 and 2021 when they protested the General Legal Council (GLC) to open up legal education, seeing their inability to gain admission to the Ghana School of Law following a new quota system as discriminatory and unjust.
The first protest this year was on September 21, 2023, and was dubbed #OccupyJulorBiHouse. Oliver Barker-Wormawor convened this movement to call on the president and members of the Economic Management Team to fix the economic mismanagement and theft that has engulfed the government from the highest levels. The Ghana police used tactics ranging from a bogus contempt of court application and the arrest of about 49 protestors to attempt to halt the peaceful protest. To the police’s dismay, they failed to ascertain that the mere filing of an application does not prevent the exercise of a constitutional right in Ghana. Therefore, pursuant to Ghanaian legal jurisprudence, you cannot imprison someone for contempt other than by a court order, which they did not have. The constitutional right in this context is the freedom of assembly under Article 21(1)(d) of Ghana’s 1992 Constitution. It guarantees the right of individuals to assemble peacefully, including the right to take part in processions and demonstrations. This right is not absolute, however, and can be restricted under certain circumstances, such as in the interests of national security, public safety, or public health. Another relevant law is the Public Order Act, 1994 (Act 491). Section 1 requires organizers of public assemblies to notify the police in advance.
On October 3, two concurrent protests occurred which highlighted the plight of Ghanaians with regards to bad road networks and economic mismanagement. It was a busy day for parliamentarians as they were heavily involved in these protests. The Ghana police were seen acting on their best behavior, as there were no reported arrests or casualties.
The Ghanaian position appears to be one bordering on a steady rise of a people who are fed up with politics as usual. It is still too early to decipher whether the recent protests will yield any result, but the shift in police attitude toward protestors appears to be promising.
Demonstrations in Kenya
In Kenya, demonstrations have been a part of the culture since before independence. Kenyans have always exercised their right to protest in order to bring about change—from advocating for independence to the late President Moi’s era, when Kenyans took to the streets on July 7, 1990 (also known as Saba Saba), to advocate for free and fair elections and the restoration of multi-party democracy. Doctors, nurses, and others in the labor force have demonstrated against low incomes, and at times, the government has done something to ease the protests.
However, when Kenyans protests poor governance, all protests have been plagued by police brutality. This happened during the Saba Saba protests in the 1990s and again this year during the demonstrations that took place between March and July, when people protested the high cost of living. This year alone, the police killed more than 50 people, badly beat up others, and arrested countless people (both opposition leaders and civilians). In fact, in most areas where violence broke out, it was due to the presence of the anti-riot police. Videos of the police shooting civilians with live bullets went viral. In the videos, you can see that some of the police were dressed in plain clothing, making it difficult at times to identify the culprits behind the acts of brutality. After people started condemning the brutality, the police were ordered to conceal protest deaths. Thus, nobody is sure how many people the police killed by the time opposition party, Azimio, finally called off the protests.
All these acts of police brutality happened despite article 37 of the Kenyan Constitution, stating that every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. Additionally, article 21 of the Kenyan Constitution states that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights while article 28 says that all Kenyan citizens’ dignity must be respected and protected. The arbitrary arrests during the demonstrations violated article 49 of the Kenyan Constitution, which advocates for the rights of arrested persons. Most of the people who were arrested were never given reasons for their arrest or brought before a court as soon as reasonably possible. In fact, the police further contravened article 49 of the constitution when it denied Azimio opposition members, such as Babu Owino, bail after the court declared they be released on bail.
Kenyan laws do protect the citizens’ right to protests, but whether the right is actually respected by the government is an issue up to debate. Not even once did Chief Justice Martha Koome condemn these acts of police brutality. The legal bodies that spoke against the police actions were the Law Society of Kenya (LSK), the Kenyan Human Rights Commission, and some of the judges in the High Court who presided over the arbitrary arrest cases. The rest of the government remained silent on the matter, apart from the president and his deputy, who praised the actions of the police.
It is hard to tell whether the protests brought about change, since the government still passed the Finance Bill, which raised taxes on the common people in Kenya. The government passed the bill despite knowing that most people are unemployed and cannot even afford basic commodities and despite countless Kenyan citizens and even local and international businesses signing petitions against it. Talks between Azimio and the government are taking place, but a good number of the public have low expectations for how the talks will go because now that the bill is law, there is little that can be done about the high cost of living.
Conclusion
The histories of protest movements in Kenya and Ghana illustrate the resilience and determination of their people in demanding change and justice. This year’s protests, fueled by economic mismanagement, underscore the pressing need for accountable governance in both nations and raise questions on the efficacy of protests. Moreover, police interference and brutality during protests has also become a major issue of concern for both countries. Nonetheless, the voices of the people, raised in peaceful demonstrations, remind us that the struggle for economic stability and social equity continues. As these countries move forward, it is imperative that their leaders heed the calls for reform and work toward a more just and prosperous future for all citizens. The shared experiences of protest in Kenya and Ghana reflect not only their past but also their ongoing journey toward a brighter and more equitable tomorrow.
Aynsley Genga is a JURIST Senior Correspondent in Kenya. Lana Osei is a JURIST staff correspondent in Ghana and a recent graduate of the GIMPA (Ghana Institute of Management and Public Administration) Faculty of Law.
