Should the Kenyan Government Declare a State of Emergency?
The Kenya National Emergency Response Committee on Coronavirus in its update dated 30th March 2020 confirms that the spread of the COVID 19 in Kenya has moved to community infection. To manage the situation, the government has indicated that it is considering additional measures, over and above the current travel bans, school closures and the curfew. Most of these measures will have far reaching legal implications. A quick background on the evolution of the virus and government measures around the world are demonstrating the legal issues surrounding control of the virus.
From Outbreak to Pandemic
Initially, the disease outbreak, seemed to be localised to Wuhan, the capital city of Hubei Province in China. As the gravity of the disease became evident and its geographical expanse moved beyond China, the World Health Organization (WHO), despite initial reservations on escalating the situation to the status of a pandemic, on 11th March 2020, declared COVID-19 a pandemic.
As the world gradually grinds to a halt due to the COVID-19 disease, measures to contain its spread are becoming more drastic with each day that passes. Based on advice from medical experts, governments are making decisions, which in ordinary times, would be regarded as a derogation of human rights. Several countries such as Italy, Spain and New Zealand have declared a state of emergency, granting government far-reaching powers. 48 states in the US and some states in Australia, such as Tasmania and Western Australia, have taken this approach. As numbers of infected persons continue to soar, we are likely to see more countries pursue this option.
The declaration of a state of emergency grants a wide range of powers to government that supersede those provided for by existing laws. Each jurisdiction includes in its legal framework the conditions for such a declaration. In most cases, the declaration allows for curtailing of fundamental rights and freedoms such as the right to free movement. This forms the basis for drastic directives including; travel bans at an international and local level; the obligation to self-quarantine, failure of which will result in monetary or penal sanctions. More drastic still, governments have resorted to ‘forceful’ quarantining of all overseas travellers in government designated facilities.
Some countries have moved from restrictions on movement to complete lockdown with a number of them putting in measures to cushion their citizens. Denmark intends to cover 75 to 90 percent of salaries provided businesses do not lay off their employees. The Netherlands will pay up to 90 percent of wages for companies severely affected by the pandemic.
In the face of the new order, the line between private and public sector has become blurry. The Spanish government has nationalized all private hospitals and healthcare providers in a bid to cope with the shortage of resources in the medical sector. In the US, the President, invoking the Defence Protection Act has directed General Motors to start the production of ventilators for COVID-19 patients. In Australia, government has put into effect a 6-month moratorium on evictions for both residential and commercial tenants. Since the country’s first case of COVID-19, the Kenyan government is gradually putting in place similar measures.
Legal basis for the general government directives in the face of COVID-19
On 15th March, the President referred to the global declaration of COVID 19 as a pandemic before setting out the preliminary measures the government would take to contain its spread. Although the Presidential directive did not refer to its legal basis, the special provisions regarding formidable epidemic, endemic or infectious diseases under the Public Health Act, provide a basis for the government’s suspension of travel. Sections 35 and 36 of the Act contain provisions on the power to declare an epidemic disease and the rules that would take effect in such a case. The rules foreseen by section 36 of the Act provide a legal basis for the travel restrictions and the quarantine rules put in place. It further empowers the Minister to make rules on any other purpose, whether of the same kind or nature as the foregoing or not, having for its object the prevention, control or suppression of infectious diseases. The application of these rules extends to any vessels, whether on inland waters or on arms or parts of the sea within the territorial jurisdiction of Kenya.
The government has also put in place several fiscal measures including tax reliefs to cushion the Kenyan economy. The basis for reduction for the Value Added Tax has been effected through Legal Notice No. 35 published in the Gazette Notice dated 26th March 2020. The government has also made directives affecting employment contracts. The amendments to the Income Tax Act to reflect these changes have not been gazetted.
How far should the government go?
The imposition by the government of a curfew from 7pm to 5am and particularly its mode of implementation by the police has been faulted. The Law Society of Kenya has questioned the legality of the curfew on the basis of its contravention of the Public Order Act. The government’s declaration of the curfew is based on the provisions of the Public Order (State Curfew) Order 2020, effected by Legal Notice No. 36 of the Kenya Gazette Notice of 26th March 2020. The Cabinet Secretary for Interior and Coordination has invoked the powers conferred to him by section 8(1) of the Public Order Act. The police brutality witnessed in the implantation of the curfew clearly constitutes an unjustifiable legal derogation of human rights. Nonetheless, legality of the imposition of the curfew is within the mandate of the state.
Ultimately, the government has the powers to declare a state of emergency based on the provisions of the Constitution. Part 4, Article 58 empowers the government to do so where the declaration is necessary to meet the circumstances of the emergency. WHO has declared the COVID-19 crisis a public health emergency; the gravity of the current situation provides sufficient justification for the government to invoke these powers. Nonetheless, the government would also be obliged to abide by the conditions set by the Constitution for validity of a state of emergency, including its duration and its implementation in a manner that respects constitutional rights and freedoms.
It is evident that the government has a responsibility to put in place adequate measures to safeguard the health and well-being of its citizens as provided for by the Constitution. Given the magnitude of the adverse impacts of COVID-19, the government must put in place all reasonable measures to stop the spread of the disease. The government seems to be avoiding this path or that of a total lockdown which in effect would constitute a de-facto state of emergency.
Whether we get to this point depends on all Kenyan citizens as well as temporary and permanent residents and any other visa holders. A faithful following of the directives of the government and health officials will be the tipping point for the direction that the government eventually takes. The message thus is; let us do the right thing.
This article was written by Dr. Elizabeth Gachenga, Deputy Vice Chancellor, Academic and Student Affairs.
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