Judge orders curfew exemption for Kenya’s lawyers

Kenya's High Court has declared as unconstitutional the 'unreasonable use of force' by police since a dusk to dawn curfew came into effect in that country on 26 March. The court has also ordered that the authorities must include lawyers and members of the police oversight authorities on the list of those exempt from the provisions of the curfew, established as a response to the coronavirus. The curfew was implemented because the government was reluctant to impose a lockdown as has been the case in a number of other countries.

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Aspects of the curfew imposed to curb the spread of Covid-19, and particularly the way police have been implementing it, were challenged last week by the Law Society of Kenya.The society has a reputation for being proactive on issues of human rights and so its court application for a range of declarations affecting the rights of people in the country is nothing unusual. In fact, at least one further application is pending, in which the society challenges other aspects of the government’s curfew, including the mandatory wearing of masks in public. The society claims in this second case, yet to be argued, that the government ‘criminalises poverty’ when it orders masks to be worn despite the fact that poor people cannot afford to buy them.

The judge who heard the first curfew challenge by the law society, Weldon Korir, was faced with a petition that claimed the curfew was unlawful because it was ‘indefinite in length’ and unconstitutionally implemented by the police. However, an updated version of the curfew regulations has since stipulated an end date and so this aspect of the challenge failed.

Pregnant

The head of Kenya’s national commission on human rights, Bernard Mogesa, said in an affidavit that his commission was constitutionally mandated to ‘monitor, investigate and report’ on human rights in all spheres of life. The commission had documented ‘numerous instances of alleged violation of human rights by police officers’, including the death following police assault of someone who had taken a pregnant woman to hospital for emergency medical attention during the curfew hours.

One of the ‘interested parties’ to the application was FIDA-Kenya, an organisation that deals with gender violence. According to a representative of FIDA-Kenya, women in particular were suffering as a result of the way police managed the curfew. She spoke of women being whipped by police and made to lie on the ground and she explained the serious concern of her organisation about pregnant women who ‘will need pre-natal and post-natal care’ during the curfew hours.

Secrecy

Another ‘interested party’, Kenya’s oldest legal advice centre, complained directly about police behaviour in enforcing the curfew. The advice centre said it was always difficult to obtain justice for victims of police brutality ‘due to the secrecy and obscurity attached to police operations.’

In his decision, the judge wrote: ‘It appears that in confronting the coronavirus … the police brought the law and order mentality to the fore. Diseases are not contained by visiting violence on members of the public. One cannot suppress or contain a virus by beating up people. The National Police Service must be held responsible and accountable for violating the rights to life and dignity among other rights.’

While the petition was making its way through the court process, the government issued new rules for the curfew, and the court found it was thus no longer necessary for it to deal with all the law society’s demands in this respect.

Violate

Korir noted government’s opposition to the society’s petition that lawyers and legal services should be added to the list exempted from the curfew. The fact that they were left off the exemption list did not violate the right of arrested persons, said government, as ‘courts operate during the day’.

The judge said it was correct that courts operated during the day, and therefore outside curfew hours. However, lawyers’ work ‘is not limited to court work’. They also had to attend to people arrested by the police, for example. He found that law society members ought to have been added to the list of those exempted from the curfew, particularly since ‘persons arrested during the curfew require legal services’. The law society’s concern was all the more important, said the judge ‘when the manner in which the curfew has been enforced is taken into account.’

Vigilant

Though the law society did not win all its challenges to the curfew, the judge made clear his criticisms of the way government – and the police – sometimes handled the restrictions: ‘It was correctly submitted … that in times of crisis the state tends to overreach itself. They have also rightly submitted that the Constitution and the law has not been suspended. I agree that it is only a few rights and fundamental freedoms that have been restricted by the … curfew. Those rights do not include the non-derogable rights under Article 25 of the Constitution. It is necessary for defenders and upholders of the rule of law to be extra vigilant whenever the state exercises emergency powers.’

In the judge’s view ‘a strong case’ was made out for the policing of security personnel and an order would be made that those responsible for oversight of the police – the Independent Police Oversight Authority – should also be exempted from the curfew.