- A curfew like the one announced by the President should be examined, for instance, for its purpose, whether it is reasonable and its significance.
- Common sense requires that certain exceptions must apply.
Success or difficulty in enforcing a curfew depends on how the public perceives it because it is controlling their movement.
Movement is a constitutional right except in certain circumstances, because with a right also come limitations. Articles 22 and 24 of the Constitution give scenarios where a right can be limited.
So, a curfew like the one announced by the President should be examined, for instance, for its purpose, whether it is reasonable and its significance, among others.
If the public does not find it to be reasonable or perceives that it does not serve the right purpose, then compliance might be difficult. If citizens find that it does not serve their interest, then you will find they will try to defy the order. That is the greatest challenge in implementing any curfew order.
If that is met, then we now move to the logistical issues in terms of whether it has been properly done, in terms of paperwork, was the protocol followed, gazettement and the works. The paperwork must be in order such that even if someone goes to court, the suit fails.
On the flexibility of such orders and the law, common sense requires that certain exceptions must apply. If, for example, a family member falls sick at night, he or she has to be taken to hospital. If law enforcement agents find you out at night, probably they will ask where you are going and what you are doing outside, you should therefore have a fairly reasonable excuse.
If anything, you are not contravening the provision per se. I suspect there shall be many such cases where people have emergencies. Even in those circumstances, the police themselves should help you, say to rush your family member to a hospital and all that.
If a matatu drops people in an estate at night, for example, the police should be in a position to understand. That is why the success of such a curfew really depends on how it is perceived by the public.
The constitutional lawyer spoke to the Star