Kenya confirmed its first COVID-19 case on March 12th, 2020. In the weeks that have followed, the government has acted to address the pandemic through a number of measures that have also significantly curtailed constitutionally guaranteed rights.
Regulatory framework and respect for the rule of law
The Public Health (PHA) and Public Order Acts (POA) have been the primary vehicles for the expression of executive powers during the pandemic. A series of regulations, rules, and guidelines have been published including: curfew orders; declarations of infected areas and restrictions of movement; and regulations and rules on the prevention, control, and suppression of COVID-19.
These rules and regulations have impacted constitutionally guaranteed rights, limiting and, in some cases, undermining the rights to: movement; health; dignity; information; social protection; work; liberty; access to justice; a fair trial; and freedom from cruel and inhumane treatment and punishment.
A national curfew was imposed between 7:00pm and 5:00am for a 30-day period on March 27th, 2020 and extended for 21-days on April 25th 2020 and further extended to June 6th, 2020. This has been brutally enforced by the police with six deaths reported on the first night of the curfew. Despite the POA stipulating penalties for its contravention, on April 19th, 2020, the State announced that persons found to breach curfew rules shall be assumed to have come into contact with the virus and shall be mandatorily quarantined. Following public outrage, the State announced that it would establish “curfew breakers’ holding places.” These actions are an unlawful limitation of the rights of an accused person to be arraigned before a Court.
As part of the State’s “test, treat, and isolate” policy, mandatory quarantine has been central. It was used for people travelling into Kenya after March 23rd, 2020 — before our borders were closed — and was imposed at the individual’s own cost with little information provided to them. The State has only a handful of dedicated quarantine facilities and has also repurposed hotels as quarantine facilities offered at market rates. Many people in quarantine were forced to enter into contracts with hotels under duress and those within government facilities were kept in mostly deplorable conditions. Mandatory quarantine was extended within some facilities contrary to the guidance (from a 14-day period up to 30 days). Some individuals were further detained for failing to meet their costs.
In addition to the unjustifiable limitation of rights, a number of directives raise procedural questions. The procedure in adopting regulations has been contrary to the Statutory Instruments Act, which requires that delegated legislation be approved by Parliament. The regulations have been implemented with immediate effect rendering Parliament’s interrogation into legality moot. The National Assembly has declined to approve regulations on the Prevention, Control and Suppression of COVID-19 and the Restriction of Movement of Persons and Related Measures, but the State has continued to implement them.
The Judiciary has already taken a decision on the legality of the curfew orders, holding that curfew is lawful but finding the use of unreasonable force in its imposition unlawful. A number of cases, including one initiated by KELIN, challenging the imposition and implementation of mandatory quarantine are pending determination.
The State encouraged people to work from home and observe social distancing in their workspace, a significant challenge for individuals within the informal sector who rely on daily wages and are required to be physically present to work. Most women in the work force — 83% — are in the informal sector, and these measures have disproportionately affected their ability to earn a living.
Women and girls also have been affected by increased incidences of gender-based violence coupled with an inability to access shelters and safe houses. The curfew has also meant that women risk being criminalized if they try to escape places of violence. Essential reproductive health services for women have come under threat which has impacted on the numbers of women able to access maternity care.
Children also have been disproportionately affected through the closure of learning institutions. This has disrupted the social systems around children, and little effort has been taken to explain this in a child-friendly manner. The Ministry of Education has announced that examinations will proceed as scheduled despite a broad understanding that most children are not able to effectively homeschool, and many parents may not be equipped to provide schooling. During this time, children are also more susceptible to violence.
Many Kenyans have been operating as normal, contrary to directives in place. While some argue this is occasioned by indiscipline, we note that many of the measures have failed to nuance the needs of Kenyans and are not resonating with the public. A significant feature of any pandemic response is building trust. Kenya has a history of poor governance, and the government’s recent actions outside the law have done little to improve that, and may be fatal to the success of our pandemic response.
Allan Maleche is the executive director of KELIN, a human rights NGO working to protect and promote health-related human rights in Kenya. Nerima Were is KELIN’s sexual and reproductive health and rights program manager.