The Kenyan government has imposed a national night time curfew with restrictions on movement and curtailment of personal freedoms. It has also restricted movements in and out of Nairobi and coastal counties.
Many Kenyans will agree that the measures are justified to fight the Covid-19 pandemic and to prevent our fragile healthcare system from collapsing. Sadly, we also know from recent history that governments can often misuse a tragedy or crisis to gather far reaching powers, and too often they do not relinquish these powers when the dust has settled and normality has returned.
It is only through WikiLeaks that the true nature of worldwide surveillance by government agencies has been revealed, the ostensible basis for such powers being national security.
We need to be mindful of the long-term impact of the current government measures, starting with the declaration of essential services. This sets out those key workers in Kenya whose services must be allowed to continue unabated during the curfew period and amidst the general restrictions relating to Covid-19.
We understand that this list is being reviewed. However, there is a glaring absence in the list. There is not a single member of the judiciary or legal fraternity who is included.
Many countries such as the UK have included a list of specified lawyers in their essential services list who are involved in providing access to justice. This includes lawyers drafting wills for sick and elderly patients, those representing defendants at bail hearings and those representing children or vulnerable adults in care proceedings.
It is clear that justice cannot be suspended or delayed until the Covid-19 pandemic is over, whenever that will be. Everyone will need to access justice in order to assert and defend their fundamental rights and freedoms including to safety, security and health.
This glaring omission of lawyers and the judiciary from the list of essential services must be placed in context. Already, the Chief Justice had announced a drastic scale back of normal court functions and services. This has led to the widespread cancellation of hearings and the refusal to process court documents at the registry in all but the most extreme cases and then, only on Thursdays.
Can justice really be limited to a specific day of the week? What does that mean to the workings of our new Constitution of 2010? In the balance of powers, how can the judicial arm of the government be placed on suspension? Who will hold the Executive and Parliament to account?
Consider, that we are already facing a number of important legal issues arising out of the Covid-19 measures. On Friday, March 27, 2020, the first day of the night curfew, we witnessed the barbarity of some members of the police and security services meted out on innocent Kenyans peacefully proceeding home from their places of work in Nairobi and Mombasa.
Citizens who were otherwise healthy and seeking to earn an honest living have been injured. Journalists who were covering the events were not spared, even though the media is on the list of essential services.
We have Kenyans who are unable to earn a living at home, facing rising commuter fares and inflation of basic foodstuffs. Where are they to turn if the courts are shut? Who will be able to survive until the next Thursday to file a case?
Landlords and employers are now required to report on individuals who display symptoms of Covid-19. What measures have been put in place to safeguard sensitive private information? Will this encourage compliance with government Covid-19 directives or create a culture of secrecy akin to a police state?
Conversely, Kenyans are clamouring for the names of the MPs who have apparently tested positive. These are public officers who interact with a wide cross section of society. To what extent should we limit the right to privacy?
Justice is not a discretionary commodity nor is it a luxury available only in times of plenty and good health. Indeed, it is an essential part of a functioning democratic society. Like the light of freedom and wisdom, justice is most needed when it is least available. We will all eventually have cause to complain if we are denied access to justice.
We support the government in its fight against Covid-19. But we cannot throw the baby out with the bathwater. Justice has been hard won in Kenya and cannot so easily be given up! The government must go back to the drawing board and ensure that access to justice is not a luxury available only at the whim of the political elite.
The Judiciary too must assert itself and put measures in place to allow access to justice, being fully mindful of the necessary social distancing measures. The delivery platforms for justice may have to be re-imagined but denying access cannot be the right answer.
Karim Anjarwalla is the Managing Partner of ALN Anjarwalla & Khanna, Advocates.
Aisha Abdalla is head of the disputes department at Anjarwalla & Khanna.
Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London.
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