Lecturer, School of Law, University of Nairobi
Kenya reported its first case of COVID – 19 on Friday, March 13, 2019. Since then the number of cases has increased exponentially. Currently, Kenya has more than 600, with about 190 recovered and 29 dead. The Kenyan Government has put in place various measures in an attempt to halt or slow the relentless march of the virus. One of the steps taken is the imposition of a night curfew published as Legal Notice No. 36 - The Public Order (State Curfew) Order, 2020 under the Public Order Act, Cap. 56. Further measures include limiting access to the country, closure of schools, set up of forced quarantine facilities, and locking down entry and exit to certain counties among other measures aimed at curbing and containing the spread of Covid-19 in the Country. These measures, though well-intended the enforcement has been problematic as it raises both constitutional and legal concerns.
Constitutional and Legal Framework regulating responses in case of emergencies
A declaration of a state of emergency in Kenya is provided for, in Article 58 of the constitution. The said powers can only be exercised by the president in accordance with the provision of Article 132(4). The declaration of emergency is limited to 14 days, however, the same may be extended by a resolution of the National Assembly. The Resolution must be supported by a vote of at least two-thirds of all the member so the National assembly and any subsequent extension require a supporting vote of a least three-quarters of all the members of the National Assembly.
The Supreme court of Kenya has the mandate to decide on the validity of a declaration of the state of emergency where an issue arises in so far as the extension of the emergency and enforcement of any legislation enacted and or action taken as a consequence of a declaration of a state of emergency.
However Kenya has not declared a state of emergency in response to the Covid-19 Pandemic, instead, the Government sought to invoke the provision of the Public Order Act, through which it issued several rafts of measures including but not limited to a dusk to dawn curfew orders pursuant to Section 8 of the Public Orders Act.
Public Health emergencies to which Covid-19, are provided for in the Public Health Act, which gives a wide array of power to the Cabinet Secretary for Health whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease.
All officers under the National Police Service are bound by the cardinal rules and principles of Article 238 and 244(d) of the Constitution to protect the rights of all and further the legislative obligations under the sixth schedule of the National Police Service Act and Section 14 of the Public Order Act on the use of force.
Limitation on Right
Article 24 of the Constitution provides that the limitation of rights should be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitution further requires any limitation of rights to be by law, in pursuit of a legitimate aim and proportionate.
Covid-19 may come within the ambit of what is termed as life-threatening circumstances, necessitating the limitation of certain services or activities. However certain rights under national and international human rights obligations are non-derogable. Therefore, any restrictions should meet the standards of necessity and proportionality and in line with Article 24 of the Constitution on the limitation of fundamental rights and freedoms and international human rights imperatives.
The bill of rights as encapsulated in the Kenyan Constitution has not been suspended during this pandemic and every person is still entitled to his/her fundamental rights and freedoms. In the event of any limitation to any right, then the proper constitutional and legislative provisions as provided for under Article 24 of the Constitution and Part IV of the Public Order Act must be followed.
Civil and Political Rights
At the onset of the curfew, there were reports of uncalled for brutality and ruthless beating being meted on innocent and defenseless Kenyans by uniformed police officers and other law enforcement officers following the start of the much-touted dusk to dawn curfew across the country.
Equally, critical actors such as journalists and other essential service providers like drivers of food supplies were not spared in this sheer brutality. The Police officers had, in pursuance of the Curfew Order, violently assaulted vulnerable persons like pregnant women; bludgeoned providers of essential services such as watchmen, supermarket workers, food truck drivers and medical personnel who were on the way to or from work; and recklessly congregated large crowds contrary to the advice by the World Health Organization (WHO) on the need for social distancing in order to avoid the spread of the virus.
That, the law enforcement officers were seen isolating innocent members of the public solely for purposes of inflicting bodily harm to them is a total abuse of basic human rights and fundamental freedoms as enshrined in the Constitution. Members of the public must not only be protected during this time but critically they should not be subjected to torture, cruel, inhuman, or degrading treatment or punishment as evidenced in the police officers’ actions.
Teargassing, beating and use of unreasonable force on the public is a violation of the right to dignity under Article 28 of the Constitution as well as the right to security of the person and freedom from cruel and degrading treatment under Article 29 of the Constitution.
It is noteworthy to point out that those people found violating the curfew orders have been arrested and placed in quarantine facilities for a minimum of 14 days without any procedural measure to ascertain their status. This in itself violates the rights of arrested persons under Article 49 of the Constitution as well as the right to fair hearing and fair trial under Article 50 of the Constitution as it excludes legal representation from the list of essential services even though persons arrested during the curfew require legal representation.
Kenyans are entitled to the highest attainable standards of health pursuant to Article 43 of the Constitution. The primary objective of the scientific response to the Covid-19 outbreak is stopping human-to-human transmission of the virus and caring for those affected. Further, that the World Health Organization (WHO) has urged countries to prepare for the detection, diagnosis and prevention of the further spread of the virus but it is not clear how the Curfew Order intends to achieve this objective.
82.7% of Kenyans work in the informal sector and live from hand to mouth and have to work between 5 am to 6 pm. Due to the poor public transport system, it is not possible for these Kenyans to shop for essentials, find transport and get home by 7pm, as a consequence this Government directives have threatened the rights to health and life of this group.
The curfew order curtails, among other constitutional rights and fundamental freedoms, the freedom of movement, the freedom of association, freedom of assembly, and, the right to work which is protected by Articles 1 and 2 of the International Covenant on Economic, Social and Cultural Rights, 1966 as applied by Article 2(6) of the Kenyan Constitution.
Oversight by Parliament
Article 58(2) of the Constitution grants parliament the mandate over the exercise of emergency power as declared by the President. These powers extend only to instances where the emergency exceed 14 days. The Public Orders Act, gives the cabinet Secretary sweeping powers to impose a curfew on a certain geographical area, therein forcing residents to remain indoors for a specified period. According to the law, the curfew remains in force until it is rescinded by the minister. Parliament oversights this power through its committee on delegated legislation to ensure the Cabinet secretary acts within the ambit of the law and does not use the discretion donated to him in a manner that contravenes the constitution. It is instructive to note that most of the executive pronouncements in the fight against coronavirus require legislative backing, and the only parliament is mandated under the constitution to legislate on the requisite legislations.
Oversight by the Judiciary
The provision of Article 58(5) of the constitution empowers the supreme court to interrogate the validity or otherwise of the declaration of a state of emergency. In respect to the Covid-19 pandemic and the attendant violation of fundamental human right if at all, the constitution of Kenya accord all persons the right to institute court proceedings for the enforcement of the bill of rights, whilst the High court is vested with the original jurisdiction of upholding and enforcing of the bill of rights.
In Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties)  eKLR, the high court in response to the police brutality held that unreasonable use of force in enforcing the Public Order (State Curfew) Order, 2020 is unconstitutional.
While the Government’s response mechanisms and measures of dealing with the COVID-19 pandemic ought to be supported, the observance of human rights and fundamental freedoms is cardinal. The response by state agencies in placing suspects under forced quarantine and the action of the police in subjecting the citizens to torture and inhumane and degrading condition points to the risk posed by overzealous executive thereby necessitation continued vigilance by a human rights organization, the judiciary and the executive to avoid wanton violation of the constitution.
The health directives given by the Government to curb the spread of Covid-19 though laudable, it is key that those who are entrusted to enforce be guided accordingly to ensure the end goal is achieved without compromising on the bill of rights.