A Kenyan court has ruled that State House and State Lodges will remain protected areas, dismissing a petition by the Operation Linda Jamii group that sought to have the areas opened to public protests. The petition, filed on July 25, 2024, arose from attempts to demonstrate outside State House Nairobi and State Lodges and to deliver petitions to President William Ruto.
The court found that the activists had not shown how the notices breached the Constitution or the law under which they were issued. It said they challenged the notices but not the Protected Areas Act, including the provision empowering the government to declare premises protected. The court emphasized that it is not sufficient for a party to allege that a law is either unconstitutional or null and void.
The petition targeted two legal notices: Legal Notice No. 433 of 1989, which designates State House in Nairobi and Mombasa, and State Lodges in Kisumu, Sagana, Nyeri, Eldoret, and Nakuru, as protected areas, and Legal Notice No. 199 of 2020, which designates Kisii State Lodge. The activists argued that the designations blocked citizens from assembling, demonstrating, and picketing outside government premises to present grievances to the Head of State.
The Protected Areas Act provides for a fine of up to Sh5,000, imprisonment for up to two years, or both, for unauthorized entry into protected areas. The petitioners asked the court to declare both notices unconstitutional, quash them, and stop the State from declaring offices routinely used by public officials protected areas. They also argued that the designations offended constitutional requirements on public service and accountability.
The State opposed the case, arguing that it was speculative and did not identify specific constitutional violations. The State maintained that protected areas were necessary for public safety and order, and that the Constitution recognized them. The court examined the purpose of the Protected Areas Act and said the law restricts entry into the designated premises to people with permission, for public safety and order.
The court also addressed the right to protest, holding that the Public Order Act regulates public gatherings, processions, demonstrations, and picketing to present petitions, which is a constitutional right under article 37 of the constitution. The court added that demonstrations and gatherings must be peaceful and that protesters could petition the President through other government offices without having to access State House or the lodges.
The court found that the petition had not challenged the Protected Areas Act or explained how the legal notices conflicted with it. It also noted that the case did not identify how the 2020 Kisii notice failed to comply with the Statutory Instruments Act. The court ruled that the petitioner did not demonstrate that the impugned legal notices had any constitutionality infirmity.
Key points
- The court upheld the protected area status for State House and State Lodges.
- The petition was dismissed as the activists failed to show how the notices breached the Constitution or the law.
- The Protected Areas Act restricts entry into designated premises to people with permission for public safety and order.
