In the case of the Law Society of Kenya vs the Attorney General and others HCCP No. 120 of 2020 (COVID 025), the High Court of Kenya heard the first challenge to one of the measures that has been taken by the Government of Kenya in a bid to fight the spread of the novel corona virus. The Government issued curfew orders which the Law Society of Kenya (LSK) felt were unconstitutional and in any event were being implemented unconstitutionally. The High Court found that the orders were constitutional, but in certain aspects were implemented unconstitutionally.
Sometime in November 2019 a virus named the novel corona virus appeared in Wuhan, Hubei Province in China. The virus causes a disease known as COVID-19. Due to its highly communicable nature, the virus rapidly spread in Wuhan before crossing international borders.
Kenya reported its first official infection on 13th March, 2020. The Kenyan Government had put in place various measures in an attempt to halt or slow down the relentless march of the virus. One of steps taken was the imposition of a night curfew published as Legal Notice No. 36 of 2020 - The Public Order (State Curfew) Order, 2020 under the Public Order Act, Cap. 56 (POA). The Legal Notice, which will henceforth be referred to as the Curfew Order, was the subject of the proceedings. The court identified five broad issues, i.e.:
a) Whether the Curfew Order was constitutional and legal;
b) Whether the National Police Service violated the Constitution in the enforcement of the Curfew Order;
c) Whether the Cabinet Secretary for Health should be ordered to issue guidelines under Section 36(m) of the Public Health Act, Cap 242 (PHA);
d) Whether the Judiciary had abdicated its constitutional mandate; and
e) The party to meet the costs of the proceedings.
The High Court of Kenya held as follows:
a) Whether the Curfew Order was constitutional and legal
The Petitioner’s case on the alleged unconstitutionality and illegality of the impugned Curfew Order was premised on the grounds that the Curfew Order did not comply with the provisions of Section 8 of the POA and that the POA was inapplicable to a public health emergency such as the COVID-19 pandemic. The court was also urged to pronounce that the Curfew Order failed the test of Article 24 of the Constitution.
The Court found that the Curfew Order complied with section 8 of the POA. Further, the court was of the view that the POA could be applicable to health emergencies like the one posed by the COVID-19 pandemic. The Court found that it was possible that the provisions of the PHA may need to be supplemented by those of the POA because, in the view of the court, panic and fear can sometimes lead to disorder and a curfew may be needed to reinforce the provisions of the PHA.
The court also found that the Curfew Order complies with the provisions of article 24 of the Constitution. However, the court also observed that although the Curfew Order met the constitutional and statutory parameters, the petitioner and the interested parties made a strong case for the retooling and remodelling of the instrument so that it can achieve its objectives with reduced impacts on the rights and fundamental freedoms of Kenyans.
b) Whether the National Police Service violated the Constitution in the enforcement of the Curfew Order
The court found that the National Police Service must be held responsible and accountable for violating the rights to life and dignity among other rights. However, in the same vein the Court did not find enough evidence to justify holding the Inspector-General of Police guilty for the unconstitutional acts of his police officers.
c) Whether the Cabinet Secretary for Health should be ordered to issue guidelines under Section 36(m) of the Public Health Act
The court found that there were sufficient guidelines under section 36 (m) of the PHA and found further that the court was not the proper forum to determine the content of the guidelines produced by the executive.
d) Whether the Judiciary has abdicated its constitutional mandate
The court found that there was nothing in the pleadings that would justify a holding that the judiciary had allegedly abdicated its constitutional mandate.
e) Who should meet the costs of the proceedings?
The court ruled that each party should meet its costs.
It is very unlikely, except in the case of a blatant violation of the Constitution, that a court can find unconstitutional measures taken by the executive to curb an emergency such as the spread of the corona virus. The ruling gives the executive some space to act innovatively in dealing with the spread of the virus and the emerging health care challenges looming over the country. The executive will, however, be well advised to take measures that do not negatively impact on the rights and fundamental freedoms of Kenyans. The fundamental rights of any person in Kenya can only be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors mentioned in article 24 of the Constitution.
The finding of the court that fundamental rights had been violated by the police was a positive finding. It opens the gate for individuals whose rights have actually been violated by the police to bring legal action against the police. Further, by stating that there was no evidence to justify finding the Inspector-General personally liable, does not in our view, close the door to such a finding being made in future cases should the right evidence be availed to the court.
The finding that the executive had made sufficient guidelines appears, in our humble view to be proper. The judiciary, which is not specialized in matters health, cannot purport to put itself in the shoes of the executive. The principle of separation of powers means the executive should carry out its mandate within the parameters of the law.
The allegation that the judiciary had abdicated its duties appears to be based more on misplaced emotion than on actual fact and it is unclear why the LSK advanced that point. There should be some consensus among membership of the LSK on the points to be argued on behalf of the LSK before a suit is instituted.
All in all, the COVID-19 pandemic, will not go soon. This is the first challenge made against the measures taken by the executive arm of the Government of Kenya and there is likely to be many more challenges that the executive arm of the Government of Kenya will face in the trying to deal with this pandemic. The pandemic is likely to change the way Kenyans look at issues relating to fundamental rights and freedoms. The executive as well as the legislature will have to be very innovative and, in some instances, may possibly be seen as draconian in some of the measures taken. It is for this reason the judiciary and the legal profession must ensure that whatever is done by the executive and the legislature during this pandemic meets Constitutional muster.
The decision is available on http://www.okadvocates.com/blog/wp-content/uploads/2020/04/LSK-v-AG-and-others.pdf