On Saturday April 25, Kenya extended curfew and lockdown of its two major cities – Nairobi and Mombasa – for another 21 days in an effort to flatten the curve of the Covid-19 disease. For Kenyans, the question of rule of law and police brutality will remain urgent because law enforcers have unprecedented powers of arrest and detention, particularly given that the courts are operating at minimal capacity.
The day after the initial curfew announcement in March, a video went viral showing general service unit (GSU) officers in the back of a truck, apparently excited at the prospect of brutalising the public. On the same night, the world watched in horror as police beat hapless commuters trying to use the Likoni ferry in Mombasa, an hour before the curfew.
In Kwale County, Khamisi Juma, a boda-boda operator, died from injuries sustained after being brutalised while on his way home from delivering to the hospital a pregnant woman in need of urgent medical care. In Nairobi, police shot dead 13-year-old Yasin Moyo who was sitting with his family on the balcony of their home.
The media has reported more at least 14 such deaths, only slightly lower than the 14 caused by the Covid-19 disease. It is therefore not shocking that Kenyans are more scared of the police than the disease itself.
In fact, Kenya’s policing around Covid-19 has been a laundry list of human rights violations. These actions violate article 25(a) of the Constitution, which protects absolutely protects one from torture, cruel and inhumane or degrading treatment and/or punishment. Other rights are captured in article 26 (1) and (3) on the right to life; article 28 on human dignity; and article 29 on the freedom and security of the person.
Additionally, such brutality violate the Prevention of Torture Act, which criminalises torture by the police and other state agencies. The law imposes heavy fines and long jail terms of up to 20 years for offenders. The Penal Code and the Police Act also expressly prohibit torture by police officers.
What is more is that Kenya is party to international human rights instruments including the United Nation’s Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter on Human and People’s Rights.
Additionally, quarantines for suspected cases are also being treated as punitive rather than in the interest of public health. The Public Order Act imposes penalties like a Sh10,000 fine, three-month imprisonment, or both for violating the curfew.
The Cabinet Secretary for Health, Mutahi Kagwe, turned quarantine facilities into police cells when he announced that curfew offenders would be assumed to have been exposed to the coronavirus and would therefore be subjected to mandatory quarantine. This challenges the rights to health and protection from detention without trial.
Yet the law is very clear on restricting the use of police force. The constitutional court, in Daniel Ng’etich & 2 others v the Attorney General & 3 others [2016], directed the Ministry of Health to develop a policy – the Tuberculosis Isolation Policy – on the involuntary confinement of persons with tuberculosis and other infectious diseases in line with the Constitution and World Health Organisation guidelines.
Unfortunately, this policy is being ignored in the current context. Given that government quarantine facilities are not adequately managed to contain the spread of the disease, those placed under quarantine are spreading the disease to each other and those working there, creating further risk.
Indeed, detention without trial is illegal in Kenya except in a state of emergency.
The government has argued that the use of the public order law in this case is different from its uses under situations of political emergency, but its implementation through the police means that for citizens the outcome or impact is the same – it amounts to detention without trial.
And there are general laws designed to control this. For example, an arrested person has the right to be “brought before a court as soon as reasonably possible but not later than 24 hours; or if the 24 hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.”
Article 25(d) of the Constitution also provides a right to habeas corpus through which any person can report an unlawful detention or imprisonment and demand the custodian of the person – in this case the Ministry of Health – to bring the detainee to court.
The government cannot attack its own citizens as a response to a public health crisis: it must protect the rule of law and use existing legal channels. Ultimately, the government must abandon its punitive approach and adopt a human rights-based and collaborative strategy in responding to the Covid-19 pandemic.
The writer is a human rights lawyer.
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