In a free and democratic country such as the nation of Kenya, fundamental rights and freedoms are guaranteed under the Constitution. Any limitation of a right or freedom may only be done in accordance with the law and only 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. It is true in law and in life that extra ordinary times call for extra ordinary measures. In the wake of the Corona Virus pandemic, Nations have taken extreme measures rallying their citizens to maintain social distance, to sanitize their hands regularly, to stay at home and further limiting movement by all modes of transport except for essential services. Countries such as Ethiopia and Japan have gone to the extent of declaring a state of emergency.
Kenya’s response to the pandemic has been cautious. Limitation on rights and freedoms has been gradual. In the final analysis, when all passes, we will know whether we did enough or too little. In the latest measures, the President on Monday 6th April 2020, directed cessation of movement within four counties Nairobi, Mombasa Kilifi and Kwale for a period of 21 days. The legal interpretation of the executive order in itself presents a challenge. In one paragraph there is limitation of movement within the county and in another paragraph there is cessation of movement in and out of the county. It is also not clear as to what is categorised as an essential service. One shudders to think of the impact when the police implement a rather ambiguous order.
Enforcement of the Law
Hard cases make bad law. It is no different for emergency periods. The implementation of the law in extreme situations is usually haphazard and often will trump properly laid out legal principles established in peace times. The president in his address stated that ‘we are war and we must win! Indeed, we must win but a highly infectious respiratory disease is no ordinary war. In fact, medical personnel are the soldiers of this war. Untrained police men without protective gear are powerless against an unseen virus. And yet, a government directive like this one is heavily dependent on the police to enforce it. The likely success of enforcement of the order will be highly dependent on the slow spread of infections or voluntary obedience by citizens. Nevertheless it behoves on the government to respond quickly and thick innovatively. For example, how will the police enforce an order against a sick person unwilling to go into quarantine? Criminal law modes of effecting arrest will no longer be effective and thereby the police will require new equipment that enforces the law while eliminating the risk of infections. In the absence of this, the law will be toothless and it is no unforeseen that lawlessness will increase. Already there are reports of increased muggings and gender based violence cases. It is timely for the country and the counties to use technology for policing and law enforcement purposes. Other countries have considered the use of drones, image recognition software and the use of mobile applications. This in itself introduces the question of further regulation to avoid trespassing on the rights of individuals especially beyond the present period of threat.
Access to Justice
Article 25 of the Constitution of Kenya is adamant that the right to a fair trial may not be limited under any circumstances. This includes the circumstances of a pandemic. Reality however, is that every human person at this time is vulnerable to the virus and courts have been forced to go virtual which inadvertently limits the right to a fair trial especially for the marginalised groups in society who have no mechanisms of accessing a virtual court room. A virtual court room in itself presents a myriad of challenges to the fulfilment of the right to a fair trial.
The second arm of this issue is the viability of enforcing court orders. Are they able amidst the present restrictions on movement and lockdown measures to obey traditional pre pandemic orders such as mandamus, injunctive relief and so on. This will require courts in the present circumstances to overstep their mandate and create orders that are not encapsulated in the present laws. This will occasion delay to justice and subsequent denial thereof.
The Nature of Work
Covid 19 will have some positive impact that will outlast this period. I anticipate that the nature of work will morph and traditional legal definitions of work will be challenged. The law must respond accordingly and must begin to intrude on cyber space which is currently highly unregulated especially in the developing world. If as anticipated, offices ditch traditional four walled spaces, the concept of address of service for purposes of licensing will be lost and will occasion loss of revenue to local governments. Cyber space in the same breath does not belong to any particular nationality and the law must begin to reimagine what elements will be taxable and create modes of identification for purposes of tax revenue which must be further resolved between local governments and national governments.
There is the corollary issue of data protection. The stay at home orders has forced institutions to use virtual meeting applications such as google meet and zoom. The Zoom application in particular has faced backlash in the United States for lack of privacy. In very large classrooms it is even harder to trace who is authorised to be in attendance and who is not. Businesses and governments alike will require to create policy and regulations on the definition of employment, taxable transactions, traceability, data privacy among many other concerns.
In the end, a few things are permanent but we are always guaranteed that change is constant. We must adapt and more so the national and county governments must respond to the present issues and to the changes occasioned by the pandemic that will outlast the present times.