C. Human rights-related issues arising from COVID-19 responses of Kenya
Right to health
As explained in Part A, the MoH issued a number of directives such as the Public Health (Prevention, Control and Suppression of Covid-19) Rules, 2020, Public Health (Covid-19 Restriction of movement of persons and Related Measures) Rules, 2020 and the Public Health (Declaration of Formidable Disease) Order, 2020. These directives conferred extensive powers on the Ministry of Health and medical officers/public health workers to determine the parameters of the emergency measures including isolating persons in and releasing persons from quarantine centres. In view of this, other government institutions and donors assisted the MoH’s efforts to combat the pandemic. For instance, on 9 May 2020, the Kenya Police SACCO donated 2,000 face masks, 280 bottles of sanitiser of 250ml each and 4,000 gloves to police officers in Trans Nzoia County. In addition, the SACCO distributed 480,000 gloves, 40,000 bottles of sanitiser and 200,000 masks worth Ksh 33.2 million to police officers and the public countrywide.
The MoH also prioritised mental health and psychosocial support through provision of mental health and psychological services to the general public, quarantined and hospitalised persons, healthcare workers, and high risk vulnerable populations, including the provision of 24-hour hotline numbers 1199 and 719. Stigma, social disruption, increasing rate of COVID-19 infection, economic loss and containment measures were identified as some of the reasons occasioning the priority.
In terms of violations on the right to health, the Kenya National Commission on Human Rights (KNCHR) reported that in April 2020 at the counties, there was a 39% decrease in antenatal clinic visits, 32% decrease in delivery of skilled birth attendance and 34% in immunisation. Further, there were impediments to accessing continued cancer treatment and other chronic illnesses due to the restriction of movement orders. Furthermore, there were cholera outbreaks in Garissa County, Marsabit County, Murang’a County, Turkana County and Wajir County summing up to 550 cases by 21 May 2020 and 13 fatalities. The KNCHR also received complaints on the deplorable conditions in the quarantine centres typified by lack of water, exorbitant costs of quarantine centres and the poor communication from the government to the COVID-19 patients leading to anxiety and panic.
Right to housing (including homelessness, informal settlements, slums, shacks)
On 4 May 2020, in a reclamation of land mission, the Nairobi City Water and Sewerage Company forcefully demolished housing structures rendering over 7,000 families homeless in Kariobangi North informal settlement. Some of the families had been living in the area for over 12 years and they alleged that they were not furnished with sufficient notice before the evictions. In spite of the government’s declaration of a moratorium on evictions on 11 May 2020, the International Work Group for Indigenous Affairs in a joint submission to the Human Rights Council’s 45th session reported that since 2 July 2020, the Kenya Forest Service had evicted more than 1,100 Ogiek people from Mariashoni, Logoman, Kiptunga and Nessuit forests located in Eastern Mau (Nakuru County) and from Nkareta in Maasai Mau (Narok County). The evictions occasioned persistent ethnic violence between the Ogiek community and other forest settlers up to 2 August 2020. Further, more than 300 Ogiek homes were demolished, farms and crops have been destroyed and livestock were left with nowhere to graze. On 10 July 2020, the Kenya Forest Service burned 28 homes at Embobut Forest leaving families in the cold with no shelter. Close to 1,000 residents from Kaloleni informal settlement were subjected to forced evictions by the Kenya Railway Corporation between 23 September and 24 September 2020. Further, residents of Dagoretti Corner faced forced evictions on 1 October 2020 resulting around 3,000 homeless families and destruction of 200 small businesses. None of these evictions were preceded by adequate notice according to the evictees.
The Landlord and Tenant Association of Kenya urged landlords to offer their tenant rent waivers for the months of April, May and June 2020 until businesses were reopened nationwide. This message was endorsed by President Kenyatta during his presidential address on 6 April 2020. According to a survey conducted by Kenya National Bureau of Statistics (KNBS), about 30% of Kenya’s population could not pay their rent in the month of April 2020 with 52.9% stating that their reasons were reduced income/earnings.
Right to water and sanitation
To enable free access to water to 1.6 million residents in informal settlements in Nairobi, the Ministry of Water, Sanitation and Irrigation invested Ksh 1.62 billion to drill and equip 193 boreholes and construct 193 elevated steel water tanks that had the capacity to supply 33 million litres of water per day. Further, under the Conditional Liquidity Support Grant Programme, which aims at providing short term liquidity to water service providers during the pandemic, the Ministry of Water signed a grant worth Ksh 6.9 billion in May 2020. Furthermore, the Ministry of Water, through the World Bank, intends to invest Ksh 5 billion as a conditional liquidity support grant to assist water utilities meet their expenditures and recover from losses caused by the pandemic.
Earlier on 22 April 2020, President Kenyatta instructed state parastatals to continuously provide essential services including water and electricity which involved not disconnecting water supply owing to unpaid bills. This did not augur well with the Kenya County Government Workers Union, who by May 2020, expressed concern that water firms, which rely largely on revenue from water bills, were incurring revenue losses and more than 20,000 employees of water companies could not receive their salaries due to the presidential directive.
The pandemic increased the demand for water for preventive measures such as handwashing and observing general hygiene. This led to water shortages and rationing. For example, on 22 March 2020, the Nyeri Water Sanitation Company advised the residents of Nyeri County to utilise the scarce water supply sparingly and to consider purchasing additional water storage facilities to compensate for the water supply interruptions. In Mathare, an informal settlement in Nairobi, by May 2020, residents faced water shortages for as long as two weeks, the water vendors doubled the water prices thus residents preferred to walk long distances to fetch water, and the borehole drilling strategies by the government were not tested frequently to gauge the water’s susceptibility to contamination.
Access to hand sanitisers was a related concern with access to water. During the earlier stages of the spread of the pandemic in the country, the Head of Public Service sought to distribute affordable sanitisers to the public. Some of the interventions included identifying ethanol seized (under any offences) at ports of entry and custom zones. Further, some corporations in the oil industry volunteered to manufacture alcohol-based sanitisers for free distribution to the public. However, on 17 May 2020, Kenya Bureau of Standards discontinued production and recalled supply of eight brands of hand sanitiser because they did not comply with the Kenya Standard for Instant Hand Sanitisers Specification, also referred to as KS EAS 789: 2013.
Right to food/ nutrition and other socio-economic rights
The pandemic deepened the hunger crisis in the country. For instance, the Kenya Bureau of Statistics reported that the food inflation for March 2020 was the highest rate recorded since August 2017. Secondly, some parts of the country including Taita-Taveta County, Kilifi County and Tana River County experienced the second desert locust infestation that began in November 2020 and by December 2020 the locusts had cleared 3,000 acres of crops and rendered 1000 families in food distress.
Regarding the government anti-pandemic directives, measures such as the closure of open-air markets denied the right to food. By the end of March 2020, about 23 county governments had instructed the closure of all open air markets and in some instances the major markets were fumigated rather than closed. Such closures specifically affected women who are the main traders in these markets. Further, the traders had to contend with the loss of customers and rise in cost of goods owing to the disruptions in supply.
A critical response to other socio-economic rights can be surmised in the government’s avenues for social protection, which sought to cushion individuals from the adverse effects of the pandemic. Through a presidential directive on 25 March 2020, the Ministry of Labour and Social Protection was instructed to appropriate Ksh 10 billion in cash transfers to the elderly, orphans and other vulnerable groups. The same directive ordered the immediate appropriation of another Ksh 10 billion from the Universal Health Coverage kitty for recruiting additional health workers. On 6 April 2020, the president directed the Ministry of Sports, Heritage and Culture to avail Ksh 100 million from the Sports, Arts and Social Development Fund to cushion artists in the creative industry.
On 16 April 2020, President Kenyatta announced the release of Ksh 8.5 million through cash-transfers for the elderly and other vulnerable members of the society; Ksh 500 million was allotted separately for persons with disability. According to the Ministry of Labour and Social Protection, the cash transfers referred to were under the Inua Jamii cash transfer programme, thus, from 20 April 2020, the 1,094, 238 beneficiaries would each receive Ksh 8,000 that would cover their January-February and March-April payment cycles. For May and June 2020, Ksh 4.37 billion was distributed to programme and the beneficiaries each received Ksh 4,000. The Inua Jamii cash transfer programme comprises Orphans and Vulnerable Children Cash Transfer Programme, Older Persons Cash Transfer Programme and Persons with Severe Disability Cash Transfer Programme.
Following a flooding crisis in Western Kenya in June 2020, around 57,701 people were displaced. Both well-wishers and the governments in the affected counties namely Vihiga County, Kisumu County, Busia County, Bungoma County and Kakamega County contributed relief to the displaced families. Earlier, on 23 May 2020, the president had directed that Ksh 1 billion was to be set aside for flood control.
Economic impact/ impact small business/ employment social security networks
On 25 March 2020, President Kenyatta instructed on the following measures on the state’s interventions in cushioning against economic effects of the pandemic. The National Treasury was directed to issue, among others: 100% tax relief for persons earning gross monthly income of up to Ksh 24,000; effective from 1 April 2020, a temporary suspension of the listing with Credit Reference Bureaus of any person, micro, small and medium enterprises and corporate entities whose loan account fell overdue or was in arrears; reduction of the VAT from 16% to 14%. The Central Bank of Kenya had at the time lowered the Central Bank Rate from 8.25% to 7.25% in a bid to avail affordable credit to the micro, small and medium enterprises across the country.
The various emergency directives infringed the right to work. Employers abided by President Kenyatta’s advice on 15 March 2020 and instructed their employees to work from home resulting in reduced income and loss of earnings. KNBS reported that in May 2020, 49.9% of the households were absent from work due to stay away/lockout measures by their employers while 91.2% of households were unsure when they would return to work. The Public Order (State Curfew) Variation Order 2020 issued on 30 March 2020, mandated employers to release their (non-essential service) workers at 4pm so that they could return home before the curfew period began. As a result, KNBS reported that there was a high variance between the pre-COVID-19 working hours and industry hours after the curfew orders were issued. The Education sector led with a 40-hour variance followed by Accommodation and Food services at 30 hours.
The Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 prohibited all public transport services (e.g. rail, bus, matatu, taxi/cabs) from carrying more than 50% of their licensed capacity so as to comply with physical distancing. As a result, the matatu industry hiked fare prices during the peak hours as the operators struggled to acquire passengers or meet their usual daily earnings. Relatedly, the restriction of movement measures also prohibited gatherings including indoor gatherings where restaurants and bars were implicated. There was a temporary closure of bars from March up until 24 July 2020 subject to a liquor permit issued by their respective County governments in which they are located, and with strict adherence to Covid-19 guidelines. Generally, the restaurants’ operating hours varied as per the curfew hours. On 11 November 2020, the Pubs, Entertainment and Restaurants Association of Kenya (PERAK) issued a statement condemning the police for harassing establishments in order to enforce the curfew orders, which were applying from 10pm to 4am. PERAK accused the police of raiding the premises (sometimes using teargas), damaging property and beating up staff members as well as customers before the curfew period began.
The State Department for Youth Affairs launched the Kazi Mtaani Programme initiative nationwide—a youth economic empowerment project—to support youth in informal settlements from the effects of the pandemic. The Kazi Mtaani beneficiaries undertake projects within the informal settlements that involve improving the environment, service delivery, providing income-generating opportunities as well as training on developing a savings culture through registered saving groups, registered social enterprises and applying for government affirmative funds. By May 2020, approximately 31, 689 youths had been recruited from eight counties in the first phase of the project and they earned between Ksh 600 and Ksh 650 daily.
Women (including violence against women)
The National Government Affirmative Action Fund under the Ministry of Public Service and Gender on 4 April 2020 reported that it had released Ksh 25, 568,498 for distribution in the 47 counties to assist affirmative groups, including women, during the pandemic.
A total of 5,009 gender-based violence (which includes violence against women-VAW) cases were reported through the National Gender-Based Violence toll-free line between January and December 2020. Additionally, a study by the National Crime Research Centre on the prevalence of gender-based violence (GBV) revealed that the number of GBV incidences between January and June 2020 was a 92.2% increase as compared to reported GBV cases between January and December in 2019.
There was a rise in cases of physical and psychological violence against elderly women in the rural areas or their homes due to the containment measures. Manifestations of such violence included theft of their monthly cash transfers or income and rape; with their husbands, children or close relatives as the main perpetrators.
In April 2020, the Ministry of Health launched the Kenya Practical Guide for Continuity of Reproductive, Maternal, New-born and Family Planning Care Services in the Background of COVID-19 Pandemic. In the case of expectant women, the practical guide elaborated on directives for antenatal care, postnatal care, delivery and how to assign risk and care for women who test positive for COVID-19 during their pregnancy or after delivery. Generally, 24-hour Tele Contact Centres were positioned as the preferred mode of first contact with healthcare providers where face-to-face visits were unnecessary.
Children (including education)
Learning in all education institutions was suspended from 16 March 2020 for primary and secondary education in day schools and from 18 March 2020 for boarding schools. The Ministry of Education through the Kenya Institute for Curriculum Education developed online content through various digital platforms and broadcasting like television and radio stations to ensure learning was uninterrupted. Later, the ministry in May 2020 ordered a phased re-opening of schools—with strict adherence to health and safety guidelines—to commence on 12 October 2020.
Between April 2020 and June 2020, the National Crime Research Centre recorded the following children’s’ rights violations: 3, 485 child neglect cases; 228 child abandonment cases; 165 defilement cases; 138 cases of physical abuse/violence; 111 parental child abduction cases and 42 cases of child pregnancy.
There were no specific government directives on assisting street children.
The pandemic also infringed on the access to immunisation for children. According to data collected by the National Vaccines and Immunisation Programme under the MoH, 189,000 girls under the age of 10 years missed out on the human papillomavirus (HPV) vaccination because of the school closure, only 161,000 of the targeted 350,000 girls every sixth months received the HPV jab. 200, 000 infants and girls under 10 years missed out on immunisation between January 2020 and June 2020.
Persons with disabilities
A statement by the United Disabled Persons of Kenya (UDPK)—an umbrella organisation for persons with disability organisations in Kenya—on 6 April 2020 implicated the police service in brutality against persons with disability (PWD) while enforcing the curfew orders. For instance, on 1 April 2020, the police service in Kakamega County assaulted a 35-year old man with an intellectual disability resulting in his death. The next day in the same county, police officers assaulted a young man with a hearing and speech disability.
Additionally, on 7 April 2020 the UPDK in collaboration with the Caucus on Disability Rights Advocacy (CRDA) issued an advisory to the government, which emphasised that the needs of PWDs should be catered for in the government’s responses to the pandemic. The advisory requested specific mention of persons with disabilities with regard to their access to information on the pandemic, living conditions especially for the PWDs residing in informal settlements; their vulnerability whereby some PWDs may have secondary conditions that render them more at risk to the pandemic; protection strategies such as disinfecting handrails of ramps and provision of support services for PWDs in self-quarantine; and support services such as providing trained professionals on the pandemic to assist in ensuring personal hygiene for PWDs. The advisory also implored the Senate to make specific mention of persons with psychosocial disabilities (including anxiety and depression); children with disabilities in view of accommodating their needs in online learning especially; PWDs in refugee camps; and continuous consultations of PWDs through their representatives countrywide.
Some of these concerns were reiterated on 30 April 2020 in UPDK and CRDA’s joint memorandum to the Senate on its Pandemic Response and Management Bill (Senate Bill 6 of 2020). The memorandum spelled out how PWDs were neglected in the main provisions of the bill and recommended that: PWDs should have representation in the National Pandemic Response Committee and the County Pandemic Response Committee; there should be specific mention of PWDs as opposed to enlisting them implicitly under ‘vulnerable persons’; and there should be a provision on accessible and timely information for the various PWDs on prevention strategies for the pandemic such as qualified sign language interpretation for televised announcements and telephone-based services with text capabilities for persons with a hearing disability.
Elderly
The pandemic necessitated increased attention to the lives of older persons, which the Kenyan Constitution classifies as persons aged 60 years and above. In particular, older persons were considered at greater risk of contracting the virus should they have co-morbidities like heart-related diseases or diabetes. Further, majority of elderly persons in the country live in the rural areas relying largely on home care thus complicating prevention strategies like social distancing. Moreover, at the earlier stages of the COVID-19 outbreak, the Ministry of Health discouraged Nairobi residents from travelling upcountry.
The elderly’s needs were side-lined. For instance, older persons’ movement was restricted, especially to places of worship if they were above the age of 58. According to a survey conducted by HelpAge International between 7 and 10 July 2020 comprising interviews with 170 older persons residing within 17 sub-counties in Nairobi, 55% felt that elderly women were at greater risk of neglect and isolation while 41% felt that elderly men were at an increased risk of denial of resources, opportunities and services.
LGBTI persons
As of May 2020, the National Gay and Lesbian Human Rights Commission reported that there were no state measures to ensure that the LGBTIQ+ community were not subjected to discrimination in the implementation of COVID-19 preventive interventions.
Owing to the closure of bars and restaurants, by April 2020, about 90% of sex workers nationwide were rendered jobless while others plunged into desperation for earnings. Consequently, some sex workers strived to continue working in ways that put them at risk of contracting COVID-19 such as inviting their clients to their homes. Relatedly, in Makueni County, the police conducted sting operations where they arrested sex workers at lodgings and detained them at quarantine centres (high schools) before arraigning them in court for an unspecified period.
In November 2020, the Gay and Lesbian Coalition of Kenya reported that they recorded 10 attacks per month on the LGBTI community.
Migrants & refugees
Like other government offices, the Directorate of Immigration Services issued a notice on 17 March 2020 indicating that contact services would be availed especially for urgent enquiries on passports, permits, permanent residency and extension of visitors’ passes among others. In addition, drop-boxes had been installed at the Foreign National Management Section where applicants could deposit their applications forms on matters such as permits and referred visas.
On 14 September 2020, after the easing of COVID-19 restrictions and resumption of international travel, the Directorate of Immigration Services lifted the amnesty on stay in the country beyond the stipulated six months. Consequently, visitors were encouraged to make arrangements to depart or regularise their stay within two weeks otherwise they would be subject to the legal sanctions under the Kenya Citizenship and Immigration Act (2011).
Even so, migrants’ means of livelihood were hard-hit by the state-mandated pandemic restrictions. Congolese bands for instance, who are not only popular in the country with some residing in the country since the 60s, but rely on live performances were forced to weigh the option of folding up and appeal to well-wishers for their survival after the directive to close entertainment spots. On 6 December 2020, the International Organisation for Migration distributed food and other essential items to over 300 Ethiopian migrants and their families in Nairobi, in an effort to mitigate the negative impacts of the pandemic that they experienced.
With regard to refugees and asylum seekers, the closure of borders complicated measures to ensure their protection amid the pandemic. According to a joint statement on 22 June 2020 by a coalition of 39 international, national, and refugee-led organisations in the Horn, East and Central Africa, when Kenya closed its border to Tanzania and Somalia on 16 May 2020, some of the refugees and asylum-seekers were arrested and returned to their border point of entry.
Persons deprived of their liberty
One of the former measures to combat the pandemic involved prisoners and persons on remand. The NCAJ on 15 March 2020, for instance, directed that the court activities would be scaled down including 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; and new arrests would be handled in the police stations unless they comprised serious charges. Consequently, by April 2020, 4,800 inmates and by September 2020, over 10,000 inmates were released from correctional facilities countrywide to decongest the prisons. A majority of the inmates were petty offenders (less than six-month jail terms). Further, the Kenya Prison Service was setting up isolation centres for new inmates as part of their response to curbing the spread of COVID-19.
Decongestion, however, was not sufficient to address the prisoners’ rights within the correctional facilities. For example, following the directive to suspend prison visits on 5 April 2020, prisoners could not receive some of the basic hygiene and sanitation products, which are in scarce supply in the prisons. To illustrate, more than 100 female inmates at Korinda Prison in Busia County lacked access to sanitary towels according to a news report on 28 May 2020. Contrastingly, although there were reported cases of prisoners or prison officials testing positive for COVID-19, some of the protective COVID-19 protocols at the correctional facilities included: provision of full protective gear for prison officers interacting directly with inmates, 14-day quarantine of new inmates at isolation centres, and handing over prisoners who test positive for COVID-19 to the National Emergency Response Team, who would monitor their health at their quarantine centres.
It is instructive to note that the police used quarantine centres as detention facilities. As noted above, sex workers were detained without trial at quarantine centres in Makueni County. Further, in Migori County, police detained persons they arrested at bars within the curfew hours at the quarantine centres. This meant that such arrested persons were mixed with COVID-19 patients, thus depleting the scarce resources such as food. On 25 May 2020, 12 out of 20 persons who were detained in the quarantine centres at Migori County escaped after complaining of poor sanitation and overcrowding.
Cells at police stations could not cater for the growing capacity of arrested persons who either flaunted curfew directives or were awaiting trial (sometimes because they could not raise the cash bail) all the while complying with the social distancing guidelines. Some examples here, according to a news report on 24 August 2020, were Ol Kalou station in Nyandarua County whose cells for five people were holding ten remandees. In Meru County, remandees from the Meru Police Station were held at the court corridors while makeshift structures served as cells in West Pokot County and Turkana County. As a crowding control strategy, Homa Bay County police officers kept petty offenders outside their cells by mandating them to clear bushes around government offices. Other interventions included releasing suspects on free bond and sending persons arrested on petty offences to court directly.
The requirement on a 14-day quarantine period for new inmates increased delays in imprisoning convicted persons. Therefore, the police service was forced to detain such persons in police cells. One of the causes for delay was that a COVID-19 certificate indicating a negative test result had to be furnished by the new inmates before admission into the isolation centres at the correctional facilities. Additionally, in some instances there was no space in the correctional facility’s isolation centre.
The extent of providing prisoners or arrested persons with personal protective equipment such as masks is unclear. However, police stations in Lamu County in towns like Mpeketoni, Witu and Faza obliged all remandees to wear masks.
Right to life and bodily security
This section has been sufficiently covered in the parts on the right to health and abuse by enforcement agencies (unlawful use of force and arbitrary detention in quarantine centres for unspecified timeframes).
To add onto the discussion, the Ministry of Health issued a number of guidelines that sought to promote the right to life within the context of fighting against the spread of the pandemic:
- Guidance for Implementing Home Care of People Not Requiring Hospitalisation for Corona Virus Disease (COVID-19) on March 2020: which sought to direct the clinical judgement of healthcare personnel and caregivers such as parents, spouses, family members, friends without formal medical training in the prevention and control of the pandemic. For caregivers specifically, the guidelines proscribed that it was significant that they receive continuous support, education and monitoring throughout the duration of home care.
- Interim Guidance for Health and Safety Measures in Workplaces in the Context of COVID-19 (June 2020): workers from both formal (including the government) and informal sector were targeted in this guideline. Some of the measures directed at employers were prohibition of spraying persons with disinfectants, installing transparent shields as a social distance strategy and encouraging a ‘no handshake’ policy.
- Interim Guidance on Provision of Services for Non-communicable Diseases (NCDs) During the COVID-19 Pandemic (July 2020): owing to the greater risk that persons with underlying conditions like cancer and cardiovascular diseases or lifestyle risk factors such as smoking, the guide sought to ensure the continuous care of patients with NCDs.
- Environmental and Social Management Framework (August 2020): this was part of a project with the aim of enhancing the health-related prevention strategies against the pandemic. One of the components involved management of medical and chemical waste from the isolation centres, medical facilities, laboratories and screening posts as these types of waste not only had the potential to increase the spread of COVID-19 but if mismanaged could negatively impact the environment.
Freedom of movement & assembly
As stated above, on 6 April 2020, the Ministry of Health gazetted the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 which limited movement in a restricted area unless the movement involved the transportation of food, construction material, fuel and pharmaceutical products or ambulances transporting patients to health facilities within an infected area. The rules prohibited all public transport services (e.g. rail, bus, matatu, taxi/cabs) from carrying more than 50% of their licensed capacity so as to comply with physical distancing and this resulted in price hikes in fares.
These measures were also amended in line with directives to limit movement within specified counties. For instance, the Ministry of Health instructed a cessation of all movement in and out of Nairobi Metropolitan Area through Public Health (COVID- 19 Restriction of Movement of Persons and Related Measures) (Nairobi Metropolitan Area) Order, 2020 for a period of 21 days. On 8 April 2020, a similar containment measure was mandated in Kwale County through Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) (Kwale County) Order, 2020; Mombasa County through Public Health (COVID-19 Restriction of Movement of Persons and Related Measures)(Mombasa County) Order, 2020; and Kilifi County through Public Health (COVID-19 Citation. Restriction of Movement of Persons and Related Measures) (Kilifi County) Order, 2020.
The Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 also prohibited ‘gatherings’, which were conferred a wide meaning, that is:
…any gathering, grouping, assembly, crowd, or procession in or on any public road or space, any building, place or premises, including wholly or partly in the open air, and including any premises or place used for any barbershop, massage parlour and beauty salon activities, gymnasium, spa, sporting, religious, cultural, political, academic, and fundraising purposed but does not include a market.
A market was defined as a public place used for the trade of food and farm produce.
On 14 April 2020, the Ministry of Health gazetted the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Variation Rules, 2020. The variation rules clarified that ‘an ordinary family gathering within a single household or living unit’ was not a gathering. Further, the variation order enlisted premises that were to remain closed throughout the restriction period, mainly, ‘any premise’ that ‘would normally open to the public in which religious, cultural, social, economic activities’ take place as well as ‘any other place or premises as may be determined by the Cabinet Secretary [for Health] from time to time.’ Other specified premises included: night clubs, golf clubs, dine-in restaurants and food courts, theatres or cinemas.
It is instructive to note that there have been phased re-openings and thereafter a return to total closure depending on the COVID-19 infection rate. For example, on 6 July 2020, President Kenyatta directed that churches and mosques could resume physical worship services for a maximum of 100 congregants (between the age of 13 and 58 years without underlying conditions) and each worship service could not last for more than an hour. On 4 November 2020, President Kenyatta directed suspended political gatherings and rallies with immediate effect for 60 days.
Pointedly, political gatherings were not as heavily prohibited as protests. The president, deputy president and politicians defiantly held political campaigns where throngs gathered and COVID-19 protocols were not observed. A news report on 3 November 2020 indicated that particularly in October 2020 counties recorded a spike in COVID-19 infections within the duration of the campaigns. To illustrate, in comparison to the infection rates in September 2020, cases in Embu County increased from 215 to 248; Nyeri County cases increased to 381 from 326, and Kisumu County had 1,212 cases from 882 in the previous month.
On 24 August 2020, police officers in Nakuru County arrested four (4) protest organisers for convening a public demonstration advocating accountability of COVID-19 funds. Earlier, on 7 July 2020, police used force (teargas) to disperse a peaceful assembly commemorating a national protest that was held on 7 July 1990 to demand multiparty democracy. 42 people were arrested and detained in police stations across Nairobi County.
Freedom of expression/ access to information/ privacy/digital rights
Other than the presidential addresses and daily updates by the Ministry of Health, which were live streamed on television and published on the respective websites, most of the COVID-19 guidelines were not as highly publicised or disseminated. Further, the guidelines are mostly in English despite Kiswahili being the other official language. Furthermore, the guidelines are neither suited for persons with visual, hearing or intellectual disabilities nor child-friendly. In terms of privacy rights, the tracking of COVID-19 infections has not ‘outed’ the patients’ personal information instead aggregated data on the counties affected has been emphasised. Yet still, there are still concerns on how the contact-tracing registries by government agencies and the private sector are stored as well as how reporting of persons suspected to have contracted COVID-19 or escaped quarantine centres to the police or Ministry of Health using their toll-free lines should be carried out as ethically as possible.
Violations such as physical assault, arrests, online harassment and telephone/verbal threats curtailed journalists’, bloggers’ and activists’ efforts to circulate news on the pandemic or advocate accountability on the numerous government promises on cushioning the public from the negative impacts of the pandemic. Between 12 March 2020 and end of April 2020, ARTICLE19 Eastern Africa recorded 22 violations against journalists: 16 in Nairobi County, 7 in Mombasa County, 5 in Turkana County and Uasin Gishu County, Nakuru County, Embu County and Kisumu County each recorded 3 violations. By 31 August 2020, the violations totalled to 48 while monitoring by ARTICLE19 Eastern Africa and Kenya Editor’s Guild indicated that about 400 journalists (including online communicators) had lost their jobs due to the economic setbacks induced by the pandemic.
Within the same timeframe, about 10 journalists were arrested for contravening the curfew measures. Notably, in most instances notwithstanding the curfew hours, journalists have visible press passes identifying them as essential service providers. Yet, they have been subjected to police violence. Another 10 journalists were arrested or threatened with prosecution under section 23 of the Computer Misuse and Cybercrime Act [2018] on publication of false information on social media about COVID-19. The constitutionality of twenty-six provisions in this law (including section 23) has been unsuccessfully contested in court even before it came to force. According to Bloggers Association of Kenya, since August 2020, when the High Court rendered the provisions constitutional, several online content creators have been arrested and charged with publication of false information especially which impedes their entitlements to free speech, media freedoms, and right to fair trial.
