Law Society of Kenya on the COVID-19 State Curfew

Nelson Havi
Teaser Image Caption
Nelson Havi, LSK President. Photo courtesy of Nation Media Group

On 25 March 2020, President Uhuru Kenyatta issued a nationwide dusk-to-dawn curfew (7pm-5am), exempting 13 groups of workers offering essential services in order to contain the rapid spread of the COVID-19 pandemic in Kenya.  The police across Kenya were reportedly accused of using excessive force while enforcing the curfew.

In this interview, Daki Galgalo the Dialogue and Civic Spaces Program Coordinator at Heinrich Böll Stiftung talks to Mr. Nelson Havi, the President, Law Society of Kenya (LSK) on the enforced curfew and police brutality. 

1. Mr Havi, what are your thoughts, on the curfew, and how the police have enforced it so far?

The curfew is unconstitutional. A curfew is used to combat crime in a particular zone or a specific area of a country. What ideally the government ought to have done was to make use of the Public Health Act (PHA) which gives the government vast powers to cordon off an area prone to infection,  confine individuals suspected of having a contracted communicable disease and forcibly test and provide them with medication. On the contrary, the police handled the enforcement of the curfew like a crime. COVID-19 is not a crime it is a health pandemic that could have been treated as an emergency. Article 58 of the Constitution of Kenya could have declared a health pandemic as an emergency then use the 14 day period required under the constitution to take whatever action they have taken in the manner that they took through the curfew. Overall, the general idea of containing the COVID-19 was noble; the problem is how it was approached, with a wrong legal framework.

2. Why did LSK move to court to challenge the curfew?

We did this for several reasons, firstly, for good order because we do not want a bad precedent to be set in the future, where the president can declare a curfew where in real sense there is no legal justification for it. Good governance under Article 10 of the Constitution of Kenya highlights that everybody formulating and enforcing law and policy is required to comply with the constitution. Therefore, the president as a state officer, the cabinet secretaries who work under him and the inspector general of police are required to comply with the constitution

Secondly, within two days of declaration of the curfew, we have seen wanton abuse of fundamental human rights and freedoms. For example, a pregnant woman on her way to the hospital was assaulted and the bodaboda rider who took her to the hospital violently attacked by the police. He later succumbed to the injuries. Truck drivers delivering food were ordered out of their vehicles and beaten,  women and traders in market places were assaulted as well. There is a penalty set out in the Public Order Act Section 8, as to what is the punishment for contravention of a curfew, it’s not corporal punishment.

Thirdly, we went to court to seek the government to formulate guidelines on how it contain the pandemic. Anybody suspected to have contracted the virus should be handled   per those guidelines. We do not want a situation where people are locked up together in a hotel, deprived of their passports, forced to pay unreasonable hotel fees, yet it’s not their making. Ideally, if the government was to enforce this measure under the Public Health Act, it will be their responsibility to cater for all these costs. However, when they take you to a 5-star hotel and tell you they have quarantined you there and you have to pay a daily boarding fee of say 20,000 - 30,000 KES, then that is a violation to one’s movement and security

3. Part of the petition in court is to compel CS Kagwe to provide in-depth information on how the country is prepared to tackle COVID-19 Why do you think the public must be informed about the measures the state is taking to deal with Corona Virus?

Informing the public is crucial for several reasons, remember that the Cabinet Secretary for Health, Hon. Mutahi Kagwe at the onset indicated that you don’t need to go to a hospital for you to be tested, it won’t be a random walk in and walk out test. A the same time, we are told if we know, or we come to discover we had contact with an infected person, they will come and pick you. What are the guidelines? You and I as a matter of general good health and concern, we will want to be sure that we are tested COVID-19 negative. I cannot walk into Aga Khan or Nairobi hospital and say that I want to be tested, the ministry of health must give the directivebefore I am tested. Yes, the kits are expensive, but some people would want certainty. Besides, for general good public order, we are better placed to combat this pandemic if we know which health facility will attend to me if I have the symptoms, and I feel they are bringing me down.  Where can I take my loved ones? For how long should I wait for the test? What are the clarity or manifestations of the symptoms or the disease?

4. We have seen cases of police officers using excessive force on Kenyans while enforcing the curfew, we have seen the same trend in the past during protests and elections. Do you in your view see this as a systemic issue within the Kenya police or can we talk of a few rogue police officers in the sector?

It is a systemic issue, which I will cascade it from top-down. Look, you saw Charles Owino, the police spokesperson on  TV trying to support the action of the police. So if a senior commander of the police can justify these actions, and if you see clips of police in a land cruiser saying that “sisi ndio serikali tumekuja kupambana na nyinyi” (we are the government, and we have come to deal with you). Sorry to say but most of these police officers are young men and women, who don’t seem to understand the magnitude of the problem at hand. Compare them with the police officers in the US and or in the UK, some of them even enforce the law with a body camera so that there is accountability from the control centre. But here in Kenya, what are the guidelines given to these police officers when they are deployed in a police vehicles at night with batons and AK47 assault rifles? They don’t know what they are going to do, because you see the mentality of a Kenyan policeman is brutal force.

We see that even in their senior commanders, we see that in the Cabinet Secretary in charge of Interior and National Coordination even though he is an extremely learned person, we see that in the Inspector General –National Police Service, they don’t want to account. When we went to court yesterday, an order was given. The Inspector General, National Police Service should provide guidelines on how the enforcement should be handled . But what did they do, they went around it saying the guidelines are in the Police Act. But no that is not how responsibility is handled in a constitutional democracy.

These are solemn offices that these senior policemen hold. If you look at it from that perspective, you will now realise why the policeman or woman on the ground will derive pleasure in beating a pregnant woman who is going to the hospital or beat up a truck driver carrying of food or medicament. What we are dealing with is not a matter of public order, but a public health issue and police do not have an understanding when it comes to public health. Since the police have insisted that the guidelines are in the Police Act, IPOA, LSK and Kenya Human Rights Commission have been ordered by the court to formulate basic guidelines and principals on what in our opinion we think are the yardsticks that will govern the conduct of the police in the enforcement of this curfew.

5. While talking about the police killings and use of excessive force a 13-year-old was killed in Kiamako, and late last year we saw another baby shot by police, which means children are not an exemption, and so are young men from informal settlements that are killed now and then. From a legal point of view, what should be done to clean up the police service in Kenya?

This may look very unorthodox, but unless police are pursuing an armed criminal, it’s my humble view that the police should not be allowed to contain the public with firearms. And we have seen these in other countries; you don’t need a gun to maintain order in a crowd. A firearm like AK47 if pointed to a group of people, is likely to decimate a minimum of 36 people in one discharge. So they don’t need an assault rifle. There are those electronic devices (tasers) that are used by police officers in other countries where if you become unruly they point them at you, and then they disable you for a few minutes to contain you. However, the history of the Kenyan Police is replete with many instances of an unjustified firearm discharge. Going forward, I do not see why the police should carry an assault rifle unless they are on a mission like in the developed democracies.

6. In the case of baby Githinji, we saw the court order for an inquest although the officers were known, why would a court order an investigation when the culprit is identified?

Yes, I am familiar with the case, and an inquest has a legal definition, so that if the death occurred and it cannot be ascertained who amongst the ten officers was responsible for pulling the trigger or for burgeoning somebody to death. A trial court may not be the best forum for ascertaining liability. So an inquest will give direction as who amongst the people were responsible. After that, the director of public prosecution will pick the file, identify those individuals, and prosecute them.

7. By law, IPOA has the mandate to investigate gross violations by police, but we have seen of late DCI taking up such investigations leading to two investigation files being taken to the DPP. Do you support parallel investigations? Do you believe parallel investigations may hurt a case?

What the DCI is doing is wrong. We cannot have internal investigation mechanisms as far as the police service is concerned. It’s not in the realm of conjecture, but the fact of the matter is this, police officers will always cove up for their own. We amongst the legal fraternity, we know the case of Willie Kimani, by the time we put the DCI on the dock to explain what happened three days had gone and we honestly believe the central command of the police knew who had killed this lawyer and where they had hidden his body. So way forward IPOA needs to be empowered to investigate matters of this kind. So that we have an independent fast speedy investigation, where IPOA deals with the file and forwards it to the director of public prosecution. DCI should not get involved in matters of this kind; the most they can do is to facilitate by providing IPOA with any information they require to do their investigation.  IPOA needs to be facilitated more, and in fact, they need to be given police powers. They might lack the clout now because they are civilians asked to investigate armed police officers. Therefore, the element of fear and the limitations as to the scope of investigations is quite real. That is why I have advocated for IPOA to be better empowered. I think they need to have the same status as the military police.

8. Why do cases of police brutality, especially police killings cases take long in court? Like the Ruaraka OCS case took five years, we have seen the case of four police officers in lawyer Willie Kimani and two others is now heading to its third year in court, what is LSK doing to reverse this? How can victims of police brutality get justice faster?

This may sound very basic, but my point is this. If killing a human being takes less than an hour, why should they be tried in one year or even a month? Way forward, we need legislation to curb the time within which trials can be undertaken. There was a member of parliament who was killed in England, and the prosecution of the people who were responsible for her death took less than two months. Partly, I will blame the judiciary for this, and I will also blame some of our colleagues for this. Because for there to be a delay of 3 years, then the defence counsel must be doing something towards that. However, the ultimate responsibility on how a murder trial should be conducted rests with the judge. The judge must put his/her foot down and say we will take these evidence and testimonies from witnesses in one month and it is upon you to fall between the confines of my limitations. It is doable. We’ve been hearing election petitions for a period of not more than 6 months. It is very involving. A murder trial is not as complicated as we want to portray it to the public, no; all we need to do is to establish the act of the murder and the motive, and at this, the judiciary has let us down. LSK before was a little bit lukewarm. I had called for the files in respect of four advocates who had been killed by the police, and it is my expectations when we return to normal we will ask the judiciary to put their feet down and determine this matter. Not that we are directing them in the manner that they should do their work. Let them conclude these trials, if the suspects are found guilty, then they have to be dealt with per the law, and if they are found innocent, then they have to be released. Way forward, these long delays in murder trials could also be explained by the fact that no death sentence has ever been enforced. Therefore, everybody who is found guilty of murder will want to bid his or her time so that they don’t start serving time for life imprisonment.  In so far as  Kenya still has a death penalty for it to be enforced, as soon as somebody has exhausted all the appellant mechanisms and is being convicted of murder, let him or her be hanged it is as simple as that. That is the law it has not been changed.

9. With your experience do you believe there are two kinds of policing in Kenya; for the poor where brutal force is used and for the rich who are given the opportunity to defend themselves in court?

Not entirely, lately, I have been involved in many cases involving senior personalities in Kenya where they are arrested and held incommunicado for long periods. Of course, they might not be as disadvantaged as the common mwanainchi who would be beaten up or assaulted, but the level of violation is across the board. A police officer will mistreat a rich man or a rich woman because the reason as to why that person holds a lofty position is the reason as to why they are treated to be the scam of the society.

10. Last but not least, what would you like to say to Kenyans during the COVID-19 season?

My plea to Kenyans is this. The Corona pandemic is a serious petulance that has afflicted the entire world. We may not know with exactitude the scope of infection. In so far as the government has put mechanisms to combat the pandemic, we need to help the government by complying to the personal and community health directives given to us. Kenyans need to adhere to the curfew even though we have challenged it in court until the court has ruled otherwise. I believe that behind everything the government is doing, there is a noble initiative to ensure that the welfare of Kenyans is taken into account. Of course, there will be wayward officers and state agents who may want to take advantage of the problem. To enable us to oversight this, LSK has set out a very elaborate mechanism.

We have issued a mobile number where you can submit complaints. But over and above that, your right as a Kenyan is more important than any other right that you have. So I urge Kenyans, to cooperate where necessary. Don’t reduce your level to that of the policeman who does not want to apply common sense. Do that which you can do to preserve your life. The rest we can monitor through the legal process, but if you are not here, we cannot follow through the legal process. You can be out of here in two ways, either the COVID-19COVID-19 pandemic takes you out, or the police take you out in a violent manner. We do not want either. 

Listen to the full Interview.