Nairobi, 29th April 2020
Kenya, like the rest of the global community of nations, has put in place measures to mitigate the impact of the COVID-19 pandemic. One of the notable measures taken by the government is the declaring of a nationwide dusk to dawn curfew that started on 27th March 2020. Subsequently on 6th April 2020, the government further declared cessation of all movement in and out of the Nairobi Metropolitan area and in the counties of Kilifi, Kwale and Mombasa starting 8th April 2020, with the same restrictions having been extended to Mandera County on April 22nd 2020.
Pursuant to its mandate, the Kenya National Commission on Human Rights (KNCHR) has been monitoring the government and civilian adherence to national and international guidelines to ensure human dignity and human rights are safeguarded by working with grassroot human rights defenders and relying on information coming through the Commission’s reporting platforms.
The Commission has also engaged various State entities such as the National Assembly, the Senate and the Judiciary in a bid to address urgent issues that require intervention of the law through legislation or court intervention. They include advisories on the legality of any restrictions imposed during this period, an advisory on Public Finance Management (COVID-19 Emergency Response Fund) Regulations 2020, an advisory on the proposed Public Health (Prevention, Control and Suppression of COVID 19). Public Health (Restriction of Movement of Persons and Related Measures) Rules 2020 and a memorandum to the Senate on a broad range of human rights concerns relating to responses to the COVID-19; with a specific submission on mental health jointly compiled by the Civil Society Organizations Stakeholders’ Forum on Mental Health.
On the Judiciary front, KNCHR was enjoined as an interested party in Petition 120 of 2020 (LSK Vs IGP) where the Court declared the use of force in enforcing curfew unreasonable and directed that the National Police Service must be held responsible and accountable for violating the rights to life and dignity among other rights.
As the Commission continues to analyse data and information received from a cross section of Kenyans it thus raises the following human rights concerns;
1. Un-procedural quarantine processing
Individuals who are being temporarily held in quarantine are to be treated at all times as free agents, except for the limitations necessarily placed upon them in accordance with the law and on the basis of scientific evidence for quarantine purposes. The action by the State to use quarantine as punishment is illegal and unconscionable. It is a direct contravention of the rule of law that demands actions and penal sanctions provided for in law. It further violates otherwise absolute rights such as the right to trial (Article 25(c) of the Constitution and international human rights obligations.
The rounding up of citizens by security agents for breaking the curfew rules is likely to exacerbate the pandemic. Notably, most of the security officers do not don Personal Protective Equipment (PPE) and this not only exposes them to danger but also by extension it escalates the infection of their families and fellow officers. Secondly, the mass transportation of the ‘suspects’ to the quarantine facilities negates the principle of social distancing further exposing citizens to danger. KNCHR, further notes that it is against the law to force people into quarantine without the due process whereby medical officers may not be involved and also without orders from a Court.
KNCHR is equally concerned by the fact that those who are quarantined are forced to cater for the quarantine expenses. This is tantamount to penalising the ill and is counter-productive to the efforts to curtail stigma and contain the spread of the virus. Given that the economy is at a low and majority of the people come from poor backgrounds, the State should forthwith offset all the bills and cease billing people under quarantine in its identified centers. The Commission calls on the State to also unconditionally release any security placed and being held in lieu of quarantine payments, which include passports.
2. Right to life, Inhuman and degrading treatment
KNCHR reiterates that the fight against the COVID-19 disease should not be criminalized and that the Constitution’s Bill of Rights has not been suspended. As at 27th April 2020, KNCHR had recorded 117 complaints relating to COVID-19 pandemic from fifteen (15) Counties with Nairobi having the highest number at 26. Out of these, 78 were reported by males, 29 by females and 10 by group/organizations. Four (4) of the complainants are persons with disability (physical, hearing and mental disability). 62% of the complaints processed were against the State while 38% were against non-State actors. Sixty six (66) of the total complaints were against National Police Service mainly relating to excesses in the enforcement of the curfew. These include; 7 cases of deaths caused by assault, torture and excessive use of force by the police. Other complaints relates to intrusion into private properties and acts of inhuman, degrading treatment or punishment, human dignity and right to health. KNCHR is continuing to process these complaints and undertake necessary interventions towards appropriate redress action where the violations have occurred. These actions include referring cases to the relevant bodies including IPOA and the ODPP for further actions in line with their mandate.
KNCHR strongly condemns the use of excessive force in enforcement of COVID-19 measures which is against Article 25 (a) of the Constitution, the prevention of Torture Act and other related legislation. In a recent ruling, the Law Society of Kenya vs Inspector General of Police, the High Court observed that “diseases are not contained by visiting violence on members of the public. One cannot suppress or contain a virus by beating up people”.
3. Economic rights of Kenyans and a looming labor crisis
KNCHR is concerned that with the matter of social distancing and early closure of businesses the income of Kenyans will be affected. This is further complicated by the fact that some of the companies are declaring workers redundant and therefore having a direct impact on livelihoods. Some of the petitioners who have reached out to KNCHR raise the challenges of paying basic bills like rent, food, electricity, water and healthcare. KNCHR therefore urges the State to reduce taxation on basic commodities such as basic food, zero rating on water and ensure that the levies on electricity are waved. The Commission also calls for affirmative action that would empower girls and women in marginalized areas, through the provision of free sanitary towels during this period.
Additionally, there are reports of break-ins into peoples businesses post curfew hours, the small lifelines that many citizens have been left with. KNCHR urges the Ministry of Interior & Coordination of National Government to continue empowering the actors of the Nyumba Kumi Initiative to heighten vigilance and root out lawless civilians.
4. Safeguarding the rights of the vulnerable and affirmative action on the women
The Commission has received information concerning violations on persons with disability especially during the enforcement of the curfew guidelines. The Commission urges the Ministry of Interior & Coordination of National Government and the Inspector General of Police to continuously empower security officers to deal with persons with disability with dignity, which includes how and where they are detained or quarantined. KNCHR notes with approval the positive measures that the government has put in place to cushion the vulnerable and urge the Ministry of Labour and Social Protection and all the concerned bodies to ensure that the same is disbursed fairly, transparently in a participatory manner for the benefit of all the intended beneficiaries.
Additionally, as many households lose their source of income, sexual reproductive health of women and young girls are at stake as families try to balance the provision of essential items for themselves such as food and shelter. The Commission thus urges the government to come up with affirmative action that can avail free or subsidized sanitary towels to the marginalized in vulnerable areas.
Recommendations
In view of the above, the Kenya National Commission on Human Rights makes the following recommendations;
- All citizens are reminded that they have a constitutionally mandated responsibility to adhere to the Rule of Law and other government measures and mechanisms aimed at managing the pandemic. The scaling down of services by the Judiciary must not result in disobedience of the law by the citizens. There are mechanisms still in place to correct habits that may endanger their lives. At the same time, the Commission calls on the members of the public to verify information shared on social media about COVID-19 before sharing.
- The Government to ensure that the laid down legal and professional guidelines on quarantining and isolations of suspects is adhered to. Hounding together of people with undue regard to social distancing is not only illegal but against the noble Government efforts to fight the COVID-19 pandemic.
- The law enforcement agencies through the Ministry of Interior and Coordination of National Government ensure that civilians, their property and businesses are protected and safe-guarded especially during the curfew enforcement hours.
- Law enforcement officers to adhere to constitutional, legal and professional ethics in enforcing security procedures during this vulnerable period. As a National Human Rights Institution, we wish to remind law enforcement officers that Articles 3 and 21 of the Constitution of Kenya places personal responsibility in case of an illegal act or commission in line of duty.
- The State to revoke past, existing and undocumented bills and offset the burden being shouldered by the persons held at the Government’s identified quarantine centers in line with Cap. 242 (Public health Act), laws of Kenya Section 27.
- Reduce the cost of living by ensuring that taxes which can be waived are effected to cushion the low income and poor Kenyans living in the informal settlements from further suffering. These include electricity, water and basic commodities like foodstuff, fuel and sanitary items for girls and women.
- The Government, as part of its citizenry social responsibility to manage the pandemic, considers issuing masks for free instead of imposing fines or placing persons under quarantine, most of who are from poor backgrounds. Poverty is not a vice to be punished. The lack of access to masks by the vulnerable groups in the society is an affront to the right to access quality healthcare guaranteed under Article 43 of the Constitution of Kenya.
The Commission will continue with its monitoring work and in this regard it reiterates that the fight against COVID-19 will not be won without collective efforts by the State and the citizens at large. KNCHR lauds the media for its continued efforts of sharing critical information with the masses. The Kenya National Commission on Human Rights invites members of the public and our stakeholders to contact the Commission via: Mobile: 0741 584 608 / 0721 519 715; WhatsApp number (texts only): 0798 849871 Email: complaint@knchr.org; haki@knchr.org; Twitter:@hakiKNCHR; Facebook- facebook.com/knchr.org; KNCHR SMS: 22359.
Dr. Bernard Mogesa, PhD, CPM
Chief Executive Officer/ Secretary to The Commission