THE CORONAVIRUS CURFEW IN KENYA
Following a National Security Council meeting, PresidentUhuru Kenyatta announced that Effective 27th March 2020 adaily 7pm to 5am curfew would be imposed in the country as a measure to curb the spread of the Covid-19 virus in Kenya.Only essential service providing entities such as; KenyaPower and Lighting Company, Health workers and medical practitioners, Public health and sanitization officers in county governments, National security, administration, and coordination officers, Licensed broadcasters and media houses, Licensed telecommunication operators and service provides, Licensed distributors and retailers of petroleum andoil products and lubricants and Food dealers, distributors, wholesales, and transporters of farm produce would be exempted from the curfew. If found violating the curfew, Kenyans risk a fine of Ksh. 10,000, three months imprisonment or both.
Justification for the curfew
The cabinet secretary for Health Mutahi Kagwe, wasemphatic that governments resort to curfew was necessitated by indiscipline that “Kenyans were observing governmentdirectives aimed at curbing the spread of the virus during the day and defying them at night.”
Several Countries around the globe such as; India, Italy France, Italy, France, Spain, Belgium, the United Kingdom, South Africa, Colombia, Bolivia, Jordan and Tunisia opted for a complete lockdown in a bid to stop the surge in the spread of the Covid-19 virus in their country. Top leaders in Kenya urged the President to also declare a total lockdown in the country to mitigate the spread of the virus, thus the president’sdirective for a ten hour curfew came as a surprise to many Kenyans and the international community. Pundits opposed to a total lockdown in the country posit that a total lockdown in the country would adversely affect the economy especially the lives of the 80% of the population that live from day to day.
What remains obscure from the order gazetted on the 26thMarch, is the duration of the curfew, Kenyans have no idea as to when the curfew will be lifted. Combing the streets and listening to views of many Kenyans the common question is “why not just declare a total lockdown instead of a curfew, doesn’t the virus spread during the day as well as at night?”the brutality meted on the Citizenry yesterday by the police in the enforcement of the curfew order begs the question has human rights and freedoms of Kenyans been suspended for the duration of the curfew?
Section 8 of the Public Order Act, Cap 56 Laws of Kenya empowers the Cabinet Secretary on the advice of the inspector general of the National police service in the interest of the public issue a directive for curfew within a certain area and hours as may be given in the curfew order. Section 9 of the Act, also empowers a police officer in charge of the police in a county or a police officer in charge of a police division where he/she considers it necessary and in the interest of the public order within the area of his responsibility by a curfew restriction order, prohibit during such hours as may be specified in the curfew restriction order, all persons, or, as the case may be, all members of any class of persons specified in the curfew restriction order, from entering, being or remaining, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew restriction order.
On the conduct of the police during a curfew, section 14 of the aforementioned statute states that “…. force may be used for any purpose, the degree of force which may be so used shall not be greater than is reasonably necessary for that purpose; whenever the circumstances so permit without gravely jeopardising the safety of persons and without grave risk of uncontrollable disorder, firearms shall not be used unless weapons less likely to cause death have previously been used without achieving the purpose aforesaid; and firearms and other weapons likely to cause death or serious bodily injury shall, if used, be used with all due caution and deliberation, and without recklessness or negligence.”
On the legal recourse for persons harmed during a curfew, Article 22 of the constitution of Kenya, 2010 empowers every person to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened further section 13 of the Public Order Act, provides for compensation to persons who have suffered from any such misconduct during the curfew.The use of curfew by the government in the fight against the covid-19 is mischievous for reasons that; section 8 (3) requires that a curfew order to inter alia provide for the period within which it will be in force. The proviso to this section requires that “…no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lessernumber of consecutive hours of daylight shall remain in force for more than seven days.” The law relied on by the government fails to make pronouncements on duration of a night curfew.
It is my belief that desperate time calls for desperate measures; however the Public Order Act is not the best tool at our disposal in the fight against the covid-19 pandemic. In my opinion provisions of Articles 58 and 132(4) (d) of the Constitution authorise the president to declare a state of emergency, the Public Health Act and the Preservation of Public security Act put in place wide ranging public security preservation measures that are well placed to curb a surge in the spread of the virus thus; registration, restriction of movement (into, out of or within Kenya), and compulsory movement of persons, control of aliens, including the removal of diplomatic privileges, the control or prohibition of anyprocession, assembly, meeting, association or society, the control and regulation of harbours, ports and the movement of vessels and the control of trading and of the prices of goods and services. A state of emergency lasts fourteen days from the date it is declared unless the National Assembly resolves to extend the declaration. Thus a 14 day total lockdown would be sufficient in containing further spread of the virus, disinfecting streets and ensuring prompt return to normalcy inthe country.