In a widely publicized and quoted article, Conservative Senator Rand Paul made a strong case for demilitarizing the police when he wrote, “We must demilitarize the police.1 The Senator further extrapolated there should be a difference between a police response and military response”.2 His lamentation emerged as a result of the shooting incidence of 18-year-old Michael Brown in Ferguson USA, where police officers brought heavy artillery normally used by the military to confront protesters. Indeed police officers in the words of Senator Rand have become the worst human rights violators in the 21st century. Police officers have always acted contrary to their constitutionally delegated duties. An assertion which is popularly captured by Glenn Reynolds3 in, ‘Popular mechanics in the following words: “Soldiers and police are supposed to be different….police look inward. They’re supposed to protect their fellow citizens from criminals, and to maintain order with minimum force. It’s the difference between Audie Murphy and Andy Griffith. But nowadays, police are looking, and acting, more like soldiers than cops, with bad consequences. And those who suffer the consequences are usually innocent civilians.”
In conjunction with the foregoing, it should be remembered that the emergence of the novel coronavirus (COVID-19) pandemic has presented the global community, and its institutions with a once –in a century crisis. Governments all over the world have formulated measures and responses to counter the contagious nature of the pandemic based on the available scientific and the World Health Organization (WHO) guidelines. The coronavirus has badly knocked and turned the world upside down. The pandemic, if it lasts longer, will test the fortitude of individuals with uncertainty of the future. Its deadly and catastrophic effect has been felt hard by China, USA, Iran, Italy and the Republic of South Korea, amongst others.
Although the pandemic has exhibited the disastrous side effect on its part, it is even more worrying to observe how police all over the world are arrogantly and ignorantly using repressive force to implement State Curfew Order in the age of Covid-19. The brutality meted out to innocent citizens as a result of police enforcement of Curfew Order is something that it cannot be explained in ordinary language. These atrocities are aimed to shoot down the hard-worn gains in our constitutional democracy as stipulated in the normative ethos of the 2010 Constitution. Elsewhere, in America the chronic barbarity that police officers unleashed upon the black American George Floyd, leading to his subsequent death will remain in the institutional memory of the global community as a threat to human family.
Kenya, on its part like all other countries, has struggled over and again on how to confront and contain this common, yet invisible enemy called Coronavirus. However, the police force has distilled more dehumanizing, demeaning, cruel and degrading act than the threat imposed by the virus.
To this end, this paper seeks to interrogate the issue of police militarization of the state in the context of Covid-19 age. The paper shall discuss the nature and the legality/ justification of curfew order imposed by the state using the Law Society of Kenya(LSK) v Hillary Mutyambai and 4 others case as the point of departure, and finally makes concluding remarks.
Exploring Coronavirus in Context Following the announcement of the first positive case on 13th March, 2020, the Kenyan government moved swiftly and announced a raft of measures including the suspension of social (public) gathering, closure of all educational institutions, religious activities, bars, suspension of international flights and imposition of self-quarantine for a period of 14 days for individuals who travelled from high-risk areas. Citizens further were directed to observe high level of hygiene especially by washing hands with soap and water. The President also directed that necessary review and adjustment of budgets the towards prevention and management of response actions be implemented to cushion the economy and the populace against the negative effects of the COVID-19 pandemic. Additionally, the government issued restriction of movements to all residents of Nairobi, Mombasa, Kwale, Kilifi and Mandera counties either by air or land. These measures were generally meant to suppress and contain the spread of the Coronavirus.
On 26th March, 2020, the government issued a public Order (State Curfew) Order from 7:00 pm to 5:00 am. The curfew came into effect on 27th March, 2020. The order listed 20 “services, personnel or workers” to which the order did not apply. The curfew order is the second nationwide movement restriction since independence following the first during the attempted coup d’état in 1982.
In terms of enforcement of the order, it is reported that the Cabinet Secretary for Interior Dr. Fred Matangi4 deployed 70,000 police officers to different parts of the country with broad powers unrelated to dusk-to-dawn curfew such as to, “enter and search any premises and detain individuals found in violation of the curfew.” These officers include the General Services Unit (GSU), Kenya Prisons, National Youth Service (NYS), and Directorate of Criminal Investigation (DCI).
Although the core objective of the curfew as intended, presumably is, to encourage social distancing and to prevent the spread of the coronavirus, the security forces have been using it as an instrument for suppressing and unleashing terror on the innocent civilians. What is even sickening is that whenever the nation is faced with new crises, the Kenya’s security apparatus has always served as the state’s principal organ of domination, repression and oppression rather than enhancing the rights of citizens.5 What is startling is why these acts of inhumanity by the police are still predominant in the post-2010 Kenya Constitution dispensation, a time when the Independent Policing Oversight Authority (IPOA)’s is in place.
With the view of countervailing the impunity of terror deployed by the police to innocent Kenyans, the Law Society of Kenya (LSK) moved to the court to challenge the curfew directives and the excessive use of force on Kenyans by police officers while enforcing the curfew order.6 In addition LSK through Lawyers Wakesho Kililo and Omwanza Ombati sought the orders of the court to direct Mr. Mutyambai to refrain from interfering with the media coverage and further, that advocates be added to the list of “essential service providers” in the interest of justice. The petition follows from the condemnation from different constitutional and human rights bodies and leaders who have also expressed concerns in the manner in which police enforced the curfew order.
On 16th April, 2020 the High Court Judge Weldon Korir delivered by email an emancipatory judgment famously LSK V Hillary Mutyambai and 4 others7 where the learned judge ruled that the unreasonable use of force in enforcing the Public Order (State Curfew)Order is illegal and unconstitutional. The judge further directed that, an amendment to the Public Order (State Curfew) Order be implemented within the timelines of five days from the date of the judgment to the effect of inclusion of (IPOA) and the advocates in the list of ‘service, personnel or workers’.
The Justification of the curfew imposed by the State The Cabinet Secretary for Interior is empowered by virtue of Section 8 of the Public Order Act8(POA) to issue a curfew if it is “necessary in the interest of public order.” However, the term “public order” is not defined in the Act or in any case Kenyan law. The United States Institute for Peace defines public order as “a condition characterized by the absence of widespread criminal and political violence, such as kidnapping, murder, riots, arson, and intimidation against targeted groups or individual.”9 In the Kenyan context, the case law addressing curfews under the Public Order Act has adopted a similar definition. The High Court (Kamau, J) in National Supper Alliance(NASA)Kenya V Cabinet Secretary for Interior and Coordination of National Government & 3 others10 stated that the curfew imposed in Lamu was “ against the backdrop of very violent acts” and was not intended to limit rights under the purview of Article 24 of the 2010 Kenyan Constitution. In para. 46 of the case, the Court described the curfew in the context of “wanton destruction of property and termination of life through violent means” that the citizens of Lamu had endured.
In Muslims for Human Rights (MUHURI), the High Court intimated that the curfew imposed in Lamu was to “curb insecurity” and prevent “attack on the lives of the residents” similar to the “massacre” that had occurred in Mpeketoni earlier that year. The Court noted that a curfew order issued under section 8 is “a police device” used to prevent and combat crime. In Haki na Sheria Initiative, the High Court addressed the curfew imposed after a terrorist attack in Garrisa killed more than 148 Kenyans students. In the other cases, the curfew implemented under section 8 was in direct response to political and criminal activities. This therefore, justifies that Public Order Act is a law specifically tailored for combating criminal activities and not emergencies. Its purpose is to bring law and order to areas visited by turmoil that is generally caused by man. The question on whether the said Act can be applied to other disasters and emergencies including containment of diseases has not been addressed by the court.
However, a glimpse of Public Health Act (PHA) gives us another trajectory for the reason that the Act is meant to address emergency matters like the present pandemic of coronavirus. Part IV(C) of the Act specifically addresses Special Provisions Regarding Formidable Epidemic, Endemic, or Infectious Diseases. Section 36 of the Act particularly, grants the Cabinet Secretary in charge of health “wide ranging powers to undertake measures to ensure the safety of public health in the Republic.”
From the aforementioned discussions both POA and PHA seem to convey different issues. The Court has affirmed that POA may be used in extraordinary (emergency) circumstances to complement the existing law. Section 16 of the PHA creates room for the application of other laws to health matters.
The court has declined the notion that the POA is not applicable to health emergencies like the one posed by the Covid-19 pandemic. Instead, the court has appreciated the fact that in a crisis resembling the ongoing Covid-19 epidemic, it is presumed that the state can issue the Curfew Order in line with the ‘precautionary principle in order to curb and minimize the spread of the virus in line with the case of Republic v Ministry & 3 Others Ex-parte Kennedy Amdany Langat& 27 others11 where the court addressed itself as follows:
“126. Therefore, applying the precautionary principle, which principle is designed to prevent potential risks, I find and hold that it is the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated or manifested. This approach takes into account the actual risk to public health, especially where there is uncertainty as to the existence or extent of risks to the health of consumers. The state may take protective measures without having to wait until the reality and seriousness of those risks are apparent.” It was further held that:
“128. At the core of this principle are many of the attributes of public health practice including a focus on primary prevention and recognition that unforeseen and unwanted consequences of human activities are not unusual. “129. Additionally, where, in matters of public health, it proves impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted as was alleged by the applicants in this case, but the likelihood of real harm to public health persists, the state should risk to materialize the precautionary principle as it justifies the adoption of restrictive measures, provided they are non-discriminatory and objective.”
With respect of the above cited case, it is important to discern the fact that the use of curfew order to restrict the contact between persons as advised by the Ministry of Health in containing the spread of Covid-19 is therefore a legitimate action. The Order of curfew will only fail the test of legality and constitutionality if is implemented in a manner that is dehumanizing and unjustifiable akin to what Kenya police are doing. The police ought to exercise their mandates with the aim of protecting the rights of civilians guaranteed under Articles 26, 28, 43(1)(a) and (2) , and 53(2) as prescribed in the 2010 Kenyan Constitution.
The court has established that the declaration of curfew is not a small matter. A curfew is said to be heavy artillery that should be deployed with circumspection. Seeing that it affects constitutional rights and freedoms, it ought to be premised on a substantive law.
The Normative nature of Article 24 in the Limitation of Rights The Curfew Order was issued based on the Legal Notice No. 36 of 2020. However, a scrutiny of the said notice was faulted by Justice Weldon Korir in the LSK V Hillary Mutyambai Judgment for failure to provide the operative statutory timelines. Section 8(3) of the POA which inter alia, states that a curfew order “shall remain in force for the period specified therein”. As such, it is paramount to specify period that the curfew will last in the instrument declaring the same. In the Lamu Curfew Case it was held that a curfew order cannot last forever. The Curfew Order is an instrument that restricts rights and freedoms thus it should be clear as to how long the limitation will last.
On the constitutionality of the instrument, it must be remembered that the Curfew Order is a legal instrument which in that case must independently pass the test (normative nature) of Article 24 of the Constitution. That test is provided at Clause (1) as follows: –
“24. (1) A right of fundamental freedom in the Bill of Rights shall not be limited except by law, and then 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, including- the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose”.
The Judges in the Republic of Kosovo in Case No. KO54/2020-President of the Republic of Kosovo (applicant)-Constitutional Review of the Decision No.[Government]15/01,23 March 2020(hereinafter simply referred to as Kosovo case) explained how the test to a constitutional provision similar to Article 24 of the Kenyan Constitution should be conducted. Let the judges speak to themselves: –
“196. In this regard, it follows that the substance of the constitutional test of Article 55 of the Constitution is a four (4) step test to which should be done in all cases when it is necessary to confirm whether we are dealing with a constitutional limitation of freedoms of rights or such limitation is unconstitutional. Before describing in detail all four steps of the test in question and how to apply them, it should be noted that the test in question is not cumulative.This means that in all instances where the condition or the first step of the test is not passed, the constitutional analysis ends here and it is not necessary to analyze the applicability of three, two or other remaining steps of the test. This interpretive, as will be explained below, is also used by the ECHR in interpreting the limitations on freedoms and rights guaranteed by the ECHR.
The test of Article 55 of the Constitution means that immediately after determining whether we are dealing with a “limitation” of a freedom or right- which should be determined in each case- the following four (4) non- cumulative questions [special emphasis] should be given to Article 55 of the Constitution:
Question 1 on the test: Was the limitation of a right or freedom guaranteed by the Constitution “prescribed by law”? If the answer is negative, then the constitutional analysis ends here- as no limitation of the rights and freedoms guaranteed by the Constitution can be done otherwise than by “law” of the Assembly and to the extent permitted by law-always under the presumption that the latter is in accordance with the Constitution. If the answer is affirmative, then it is moved to the second question of the test because the requirement that the limitation was made by law or that limitation was “prescribed by law” of Assembly is met. Question 2 of the test: Has the limitation of a certain right or freedom followed a legitimate aim, namely; through the limitation question, is the purpose for which the limitation is permitted fulfilled? If the answer is negative, then the constitutional ends here- as no limitation of the rights and freedoms guaranteed by the Constitution can be done without determining and legitimizing the aim of such a limitation and without fulfilling the purpose for which the limitation is made. If the answer is affirmative, that is, the test of legitimate aim is passed, then it is forwarded to the third question of the test. Question 3 of the test: Was the limitation of a certain right or freedom proportional, that is; was limitation made only to the extent necessary? If the answer is negative, then the constitutional analysis ends here- as no limitation of the rights and freedom pledged by the Constitution can be made beyond the extent of necessity and proportionality. If the answer is affirmative, then the proportionality necessity test is met, it proceeds to the fourth and final question of the fourth-step test. Question of the test: is the limitation made necessary in an open and democratic society? Regardless of whether the answer to this question is negative or affirmative, the constitutional analysis ends here. If the answer is negative, then it means that the limitation of that right or freedom is not constitutional because no limitation can be made if it is not necessary in an open and democratic society. If the answer is affirmative, then it is considered that the limitation made was constitutional because all four steps of the test provided by Article 55 of the Constitution were affirmatively fulfilled.
In the abovementioned context and in summary, the Court emphasizes that the test of Article 55 of the Constitution stipulates that the limitation of a right or freedom:(i) may be done only by “law” of the Assembly;(ii) there should be a “legitimate aim”;(iii) it should be “essential and proportional”; and (iv)it should be “ necessary in a democratic society.”
Public Disorder as an instrument of State militarization and Human rights abuses Kenya police as a discipline organ of the State are supposed to carry out their mandates with aim of maintaining law and order in any given polity. On the contrary, police in Kenya have continued to deploy colonial hangovers and draconian orders to stigmatize the members of the public.
It is of importance to note that Kenya’s Independent Policing Oversight Authority (IPOA) has currently received over 87 complaints about the police since the dusk-to- dawn curfew was ordered. Furthermore, some 15 deaths and “31 incidents where victims sustained serious injuries have been linked to the police. Earlier in June this year, a crowd of up to 200 people in protest of police brutality and increase of extra judicial killings in the Kenyan capital were seen marching peacefully through Mathare slum.12 The protest was hosted/organized by three grassroots organizations from the areas in response to a rise in the number of police killings since a dusk-till –dawn curfew was enforced in March to mitigate the spread of Covid-19. It was also organized as a solidarity mechanism by movements, civil societies and human rights organizations worldwide to protest against police cowardice and merciless brutality meted out on the innocent civilians.
Furthermore, it is instructive to observe that the story of Mercy Cherono depicts the deadly nature of the police officers in the Kenyan context in the era of coronavirus. In Cherono’s ordeal a video that has been circulating on social media shows her being dragged by police helplessly using motorbike across the streets of Olenguruone town. Cherono, a mother of one said, a policeman attached to the local station tied both her hands on the motorbike and started dragging her through the tarmac road claiming she had stolen from him. The incident of Cherono exhibits how the State can exercise monopoly of power as an instrument to terrorize innocent people at the expense of maintaining law and order. Surprisingly, Kenya being one of the global actors and human rights defenders has always been caught on the wrong side of human rights abuses. The Bill of Rights (BOR) for instance is explicit to the fact that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.13 The foregoing constitutional provision instructs us that the Kenyan State is currently founded on the egalitarian ethos where human rights are not an option to be considered to be respected or not. It rather a remainder of our broken past in the quest for a human rights based society as established in Article 10 of the Constitution.
But perhaps, what must ring deep to the conscious of police officers in Kenya is the normative groundings of Articles 243 and 244 of the Kenya 2010 Constitution, which seek to wipe out the institutionalized impunity in the police sector. Informed by its ugly past, Kenyan police must walk in the tight rope of the Constitution by exercising accountability, transparency, competency and professionalism while discharging their overall mandates.14
Conclusion As the global community grapples with means to arrest the disastrous effect of Covid-19, the police force worldwide have emerged single-handedly as the greatest threat to human family. Kenyan police like USA and other States has always been caught on the wrong side of human rights abuses. From the time of President Jomo Kenyatta, President Moi, President Kibaki and now President Uhuru Kenyatta, the Kenyan police have been extensively ranked to be leading in corruption, lack of professionalism and deep seated impunity inherited from the colonial masters. We must ardently disapprove the dehumanization of human rights even if heavens fall down with its knees!
Tioko Ekiru Emmanuel is a trainee Lawyer at Katiba Institute (KI), a pro-human rights and democratic governance CSO, founded by Prof.Yash Pal Ghai, the world-renowned constitutional governance scholar. The author acknowledges the invaluable input of Atieno Ogolla a human rights enthusiast and a trainee Advocate at Mucheru Law LLP.