B. Democracy-related issues arising from COVID-10 responses of states Kenya
Elections
In preparation for the 2022 General Elections, the Independent Electoral and Boundaries Commission (IEBC) published the Protocols for Conducting Electoral Activities in the Covid-19 Context in October 2020 detailing how all the processes within the electoral cycle would be carried out in view of the pandemic. The protocols nonetheless have assisted in facilitating some by-elections and the ongoing constitutional amendment process (or Building Bridges Initiative in common parlance) that culminates in a referendum.
On 15 December 2020, the IEBC conducted by-elections in Msambweni constituency (Kwale County), Kahawa Wendani ward (Kiambu County), Kisumu Northward (Kisumu County), Dabaso ward (Kilifi County), Wundanyi or Mbale (Taita Taveta County) and Lake View ward (Nakuru County). It is instructive to note, that the IEBC had postponed these by-elections due to the COVID-19 pandemic. For instance, the Msambweni constituency had been without a leader since March 2020 following the death of their Member of Parliament.
Executive
As described in Part A, the emergency measures were largely coordinated by the Executive through the Office of the President, the Cabinet Secretary of Health and the Cabinet Secretary of Interior and Coordination of National Government. Their authority was applied through presidential addresses, executive orders and legal notices.
In addition, the National Emergency Response Committee on Coronavirus comprised several Executive officers including: Cabinet Secretary for Health, Cabinet Secretary for Foreign Affairs, Cabinet Secretary for Transport, Infrastructure, Housing, Urban Development and Public Works, Cabinet Secretary for Interior and Coordination of National Government, Cabinet Secretary for ICT, Innovation and Youth Affairs, Chairperson Health Committee at the Council of Governors, Principal Secretary for Interior and Citizen Services, Principal Secretary Telecommunications & Broadcasting, Chief of Staff at the Office of the President, Director General Medical Services, Director General Kenya Civil Aviation Authority, Director of Immigration, and Director of Medical Services at the Kenya Defence Forces.
On 25 March 2020, President Kenyatta announced that his administration had offered a voluntary reduction in the salaries of the senior ranks of the National Executive comprising: 80% for the President and Deputy President; 30% for Cabinet Secretaries; 30% for Chief Administrative Secretaries and 20% for Principal Secretaries.
Parliament
The two parliamentary houses, that is, National Assembly and Senate, restructured their operations in order to comply with the MoH directives. On 2 April 2020, the Speaker of the National Assembly issued Speaker’s Guidelines No.2 of 2020 on the Conduct of Sittings of the House and Committee Meetings during the COVID-19 pandemic. Some of the effects under these guidelines were: reducing the sitting capacity from 418 to 70 seats; digitising access to chamber documents; scheduling of sittings through the clerk while ensuring there was sufficient party representation; members of parliament and parliamentary staff above the age of 58 years were encouraged to work from home; general sanitation and hygiene measures to prevent the spread of the pandemic like social distancing and prohibition of visitors to the chamber’s galleries. The Senate, on the other hand, was reconfigured to seat 28 senators only (out of a total of 68). In addition, the Senate Business Committee yielded a total of Ksh 200 million from the Senate’s budget allocation during the 2019/2020 financial year, to assist with the government’s COVID-19 prevention measures.
Parliament also enacted laws targeted at responding to the pandemic. For instance, the Tax Laws Amendment Act (No. 2 of 2020), which proposes whole scale removals and restrictions to a number of the exemptions and reliefs under Kenya’s tax regime.
At the county level, the Members of the County Assembly also amended their house rules on the conduct of sittings and also passed laws specific to COVID-19. In Nakuru County, for instance, the county assembly passed a motion on 16 April 2020 that detailed how the COVID-19 emergency fund worth Ksh 250 million would be distributed.
One of the prevailing issues was the four-month stalemate (July to October 2020) between the National Assembly and Senate over the County Revenue Allocation Bill, 2020 denying the 47 counties about Ksh 316 billion. The delay was further occasioned by the Senate’s deadlock in approving the Third Basis Formula, which sets out the parameters for how the billions would be equitably shared among the 47 counties. As a result, on 3 September 2020, the Council of Governors threatened to dissolve the Senate, as its deadlock would fracture development in the counties generally (leading up to a possible shut down of the county governments by 17 September 2020), and counties would be unable to pay the health workers for their toils in responding to COVID-19.
Judiciary
On 15 March 2020, the National Council of Administrative Justice (NCAJ) which is tasked with the duty to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, directed the downscaling of the public-facing court activities. Consequently, the directive barred open court appearances and suspended criminal and civil ongoing cases except the handling of certificates of urgency and taking pleas for serious cases. Part of the down-scaling involved the following: prisoners and remandees would not be presented in court; in an effort to decongest prisons, judges on duties were advised to issue revision orders for deserving cases (about 19,000 comprising less than six-month sentences) as identified by the prison authorities; new arrests would be handled in the police stations unless they comprised serious charges; all executions were suspended, and an ad hoc inter-agency committee was established to advise on the precautionary measures against the pandemic.
The first directive anticipated a two-week suspension beginning on 16 March 2020, however, as concerns on the pandemic intensified, a second directive by NCAJ on 19 March 2020, further scaled down court activities and expressly encouraged ‘judges to consider electronic delivery of rulings.’ Additionally, to decongest the courts that were operating with a lean staff, it was suggested that advocates should take advantage of the e-filing system in the High Court Commercial and Tax Division as well as the Chief Magistrate’s Court. On 1 April 2020, the NCAJ released through gazette notice the Electronic Case Management Practice Directions, 2020 in order to assist all courts countrywide to embrace technological processes and solutions in their judicial work. On 15 April 2020, the NCAJ published a further release on the up-scaling of open-court hearings by 22 April 2020 where practicable or where virtual proceedings are unavailable all the while complying with the MoH guidelines on combatting the pandemic. All these directives were concluded following consultations with government agencies in the justice sector including the Solicitor-General, the Director of Public Prosecutions, the Chief Executive Officer of the Ethics and Anti-Corruption Commission, the Commissioner-General of Prisons and the President of the Law Society of Kenya. By 7 May 2020, then Chief Justice David Maraga announced that since the onset of online courts due to COVID-19 measures, judges had delivered approximately 7,000 judgements.
Specific courts and tribunals also released practice guidelines or notices on how their adjudication would proceed in view of the pandemic. Through a press release, the Supreme Court announced that they would take pay cuts in a bid to make a contribution to the mitigation measures against the pandemic. The Chief Justice and Deputy Chief Justice would take a 30% pay cut for three months (beginning 27 March 2020) while the remaining four judges would take 20%. The Court of Appeal released the Court of Appeal Practice Note Administrative Measures to Mitigate Covid-19 on 24 March 2020 detailing that its registry in Nairobi would remain closed to advocates and litigants, and shared contacts of staff members who would assist with the criminal appeal, civil appeals and civil applications. On 16 March 2020, the High Court issued the Practice Note on E-Filing of Commercial Cases to Mitigate Covid-19 in the Commercial Justice Sector that encouraged litigants to make use of the e-filing platform when initiating commercial cases at the High Court (Commercial & Tax Division) and Chief Magistrate’s Commercial Court. The e-filing process included provisions for making online payments mainly via M-Pesa, which would yield an electronic receipt with the particulars of the case and serve as proof of payment. The Milimani High Court Family Division urged litigants to update their contact details since most law firms would be operating from home, as such judgments and rulings would be delivered via e-mail. The Office of Registrar of Tribunals also released a notice on how to get in touch electronically owing to the court down-scaling.
Transparency/Access to information
The Senate Health Committee (23 July 2020), the Senate Ad-Hoc Committee (4 August 2020) and the Public Investment Committee (31 August 2020) requested the Auditor General to conduct a probe into the utilisation of the COVID-19 funds by county governments and Kenya Medical Supplies Authority’s (KEMSA) procurement process and accounts for the period 2017/2018 and 2019/2020. KEMSA is a state corporation tasked with procuring, warehousing and distributing drugs and medical supplies for the government.
The special audit revealed that during the period under review, KEMSA irregularly utilised Universal Health Coverage and Capital Budgets to procure COVID-19 related material worth Ksh 7,632,068,588. The procurement process was not initiated based on need assessment and planning, therefore, there was over-procurement of COVID-19 related material worth Ksh 6, 346, 784, 383 with 97% of the material held in KEMSA warehouses for over three months. Lastly, the audit projected that KEMSA would incur a loss of Ksh 2,338,261,175 if they persisted in procuring the COVID-19 stock at higher market prices than the market price at that time. With regard to the utilisation of COVID-19 funds by the county governments, the special audit that the county governments did not have in place approved work plans and budgets to guide in their expenditure of the allocated national grants such that by 31 July 2020 most of the funds remained unused. Further, there was a lack of Integrated Financial Reporting between financial and non-financial programme indicators. In Bungoma County for instance, Ksh 6.9 billion was allegedly withdrawn from the county’s bank account in a single day and handed over to county staff who paid off suppliers.
Abuse by law enforcement agents/Exacerbation of authoritarian tendencies/power grabs
According to a status report by Independent Police Oversight Authority (IPOA) released in June 2020, IPOA had received 87 complaints against police officers since the daily dusk to dawn curfew orders were issued from 27 March 2020 to June 2020. 15 deaths and 31 sustained injuries were directly linked to police conduct over the curfew period. IPOA is a statutory government agency tasked with providing civilian oversight over the work of police in Kenya.
Independent Medico-Legal Unit (IMLU) provided more aggregated data on the police violence incidences over the curfew period between March 2020 and April 2020. IMLU recorded 25 cases of torture and other forms of ill-treatment and extra-judicial executions related to the curfew. Of the 25 cases, 19 injuries were sustained while 6 deaths occurred. 20 were male victims while 5 were female and the victims were aged between 13 and 52 years old. IMLU is a governance, health and human rights non-profit organisation based in Kenya.
Kenya Human Rights Commission reported that between April 2020 and May 2020, cases of extortion and bribery by police officers escalated. For instance, in Uasin Gishu County, police harassed long-distance drivers in spite of their ‘essential services’ status, thus, occasioning long queues at the Maili Nane border area. In Kamukunji (Nairobi County) police arrested people for not wearing masks and demanded bribes worth Ksh 50 to Ksh 200 in order to secure their release.
