The High Court has ordered Interior Cabinet Secretary Fred Matiang’i to review the curfew orders and include the Independent Policing Oversight Authority (IPOA) officials and lawyers among essential services providers but declined to nullify the curfew.
Matiang’i has five days to comply with the order issued by Justice Weldon Korir by publishing the curfew afresh and include the Law Society of Kenya (LSK) members and “police of the police” (IPOA) in the list of “services, personnel or workers” exempted from provisions of the Public Order Act.
LSK had sought a declaration by the High Court that it is necessary for defenders and upholders of the rule of law to be extra vigilant whenever the State exercises emergency powers.
It also wanted police’s unreasonable use of force in enforcing the state curfew be declared unconstitutional and Korir agreed with the lawyers.
“The petitioner has asked the court to issue any other order it deems fit and just. In my view a strong case has been established for the policing of the security personnel. In that regard, an order shall also issue exempting the police of the police service from the operations of the Curfew Order,” Korir stated.
The LSK had sued the Inspector General of the National Police Service Hillary Mutyambai, Matiangi, Attorney General Kihara Kariuki and the Health Cabinet Secretary Mutahi Kagwe in the suit seeking the curfew illegal.
The lawyers lobby had moved to the High Court seeking nullification of the “draconian” 7pm-5am curfew imposed by President Uhuru Kenyatta on March 26, 2020 as part of measures to contain the coronavirus spread.
Through lawyers Omwanza Ombati and Wakesho Kililo, the LSK petitioned the High Court to nullify the curfew because it is illegitimate.
CURFEW ORDER
The LSK had argued that the Curfew Order is “illegal, illegitimate and un-proportionate as it is blanket in scope and indefinite in length”.
The society had argued that the curfew limits rights and ascribes penal consequences without any legitimate aim.
The lawyers faulted the state for invoking the Public Order Act to deal with Covid-19 yet public health emergencies are governed by Section 36 of the Public Health Act (PHA).
But Korir declined to agree with them.
“It cannot be said that the POA is not applicable to health emergencies like the one posed by the Covid-19 pandemic. It is possible that the provisions of the PHA may need to be supplemented by those of the POA. Panic and fear can sometimes lead to disorder and a curfew may be needed to reinforce the provisions of the PHA,” Korir said.
“I therefore decline to agree with the petitioner (LSK) that a curfew order cannot be used to address a public health emergency. I did not hear any submission that a curfew order is not appropriate in the circumstances of the Covid-19 pandemic. I, however, heard some of the parties argue in support of the petition that the Curfew Order should have been issued under the PHA,” Korir said.
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