• Should the government have proceeded to restrict movement as contemplated under Section 36 and 169 of the Public Health Act or under Section 8(1) of the Public Order Act?
• The order is restrictive in nature and may not enable the government achieve the target goal.
Various countries across the world have employed emergency measures in a bid to curb the spread of coronavirus and its debilitating effect on the people and economy.
Some have effected countrywide lockdowns, while others have opted for partial shutdowns of the affected areas.
South Africa has declared Covid-19 a national disaster and effected a 21-day lockdown. Uganda on Tuesday extended its 14-day lockdown for another 21 days (April,15 to May 5, 2020). Botswana, on the other hand, has declared a state of emergency and proceeded on a 21-day lockdown to combat further spread.
Kenya has also introduced a number of measures.
On March 26, President Uhuru Kenyatta announced additional measures, among them daily curfew from 7pm to 5am effective March 27. A curfew essentially entails restriction of movement within the specified hours. The only persons allowed to operate during the curfew are those providing critical and essential services.
Interior CS Fred Matiang’i subsequently published the Public Order (State Curfew) Order, 2020 in the Kenya Gazette to provide for a legal status of the curfew.
The Gazette notice by the CS was issued under the provisions of Section 8(1) of the Public Order Act.
Section 8(1) of the Act provides: “The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service, may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorised by or under the curfew order.”
Restriction of movement is also considered under Section 36(d) of the Public Health Act which states: “Whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease, the Minister may make rules for all or any of the following purposes, namely (d) preventing any person from leaving any infected area without undergoing all or any of the following, namely, medical examination, disinfection, inoculation, vaccination or revaccination and passing a specified period in an observation camp or station.” Section 169 of Act further gives the Cabinet Secretary for Health powers to make ruled generally for the carrying out of the purposes of the Act.
Should the government have proceeded to restrict movement as contemplated under Section 36 and 169 of the Public Health Act or under Section 8(1) of the Public Order Act?
The order is restrictive in nature and may not enable the government achieve the target goal. Section 36(d) of the Public Health Act gives the Cabinet Secretary a wide discretion in terms of limiting movement.
It is noteworthy that the initial widely circulated Gazette notice did not include the duration of the curfew. However, at the High Court in Constitution Petition No. 120 of 2020, Law Society of Kenya v. Inspector General of Police, CS Interior and Co-ordination of National Government & 3 others, the respondent in their affidavit in reply attached a Gazette notice that stated the curfew duration was for 30 days (Judgement in the Petition is yet to be delivered).
The imposition of curfew is lawful as long as the various provisions of the law are adhered to. The restrictions envisaged under Section 8 of the Public Order Act include the limitation on the number of days and hours.
In the case of Law Society of Kenya v Inspector General Kenya National Police Service & 3 others  eKLR, Justice Said J. Chitembwe held that “Section 8(1) of the Public Order Act allows the imposition of a curfew. However, under that Act, there is a provision, which gives the longest period of a curfew to be seven (7) days ... This, therefore, means that a curfew is a temporary stop-gap measure ... It is not the intention of the law to make the curfew a normal daily weekly, or monthly routine of the citizens affected by it … The proviso under Section 8 of the Public Order Act (2012 revised edition) only empowers the imposition of a curfew for not more than seven days. Such is the case where the period of the curfew is less than ten consecutive hours per day. If it is more than ten hours in a day then the curfew should not last for more than three days …”
Justice Chitembwe discussed the effects of having a curfew in place “The reasoning behind the seven day period under Section 8 of the Public Order Act is that a curfew has the effect of limiting the time during which the citizens can be pursuing their daily businesses. Curfews reduce the number of hours the affected persons operate in a day. The cumulative effect is to deny those who are affected their rights to pursue economic and social activities during those curfew hours. That being the case, the law only permits a limited period which would enable the security officers restore public order in the affected area ... A curfew is not intended to be the solution to criminal activities but is merely a stop-gap measure to allow operations by the security organs undertaken with much ease.”
It goes without saying that many Kenyans are being adversely affected by the curfew, even though the intention is to prevent the spread of Covid-19 — which is noble.
Justice Chitembwe views curfew as a temporary measure that is not meant to permanently deprive citizens’ flexibility of their time movement.
Conversely, the curfew imposed by CS Matiang’i seems not to fit the bill of what is envisaged by the law and does not seem to be a stop-gap measure but a continuing measure fraught with uncertainty.
The World Health Organization and the Ministry of Health have said the coronavirus incubation period is 14 days. That given, the Public Order Act may not be the best law to use since it does not provide for a 14-day period but seven days.
On the other hand, the Public Health Act under Section 36 and 169, despite also restricting movement, provides a better approach to combating this epidemic. It gives the Health Cabinet Secretary a wide latitude as compared to the Public Order Act that appears to limit the number of days.
THIS IS A HEALTH MINISTRY AREA
While all government agencies must work together in dealing with the epidemic, it is the Health ministry that must take the lead in enforcing the various restrictions. This will prevent complaints that arose during the first day of the enforcement of the curfew order.
As was pointed out by Justice RE Aburili in the case of Republic v Ministry of Health & 3 others Ex-parte Kennedy Amdany Langat & 27 others  eKLR, “81. From the foregoing provision, clearly, the Cabinet Secretary has wide-ranging powers under section 36 of the Public Health Act to undertake measures to ensure the safety of public health in the Republic”.
The main purpose of the existing curfew is to prevent the spread of Covid-19, a medical issue. Section 8(1) of the Public Order Act is to the effect that the Interior CS issues the curfew order on the advice of the Inspector General of Police. Is the IG a medical professional? Would it not be prudent that such advice emanates from the Ministry of Health? This lends more credence that the government should utilise the Public Health Act rather than the Public Order Act.
In fact, Uganda has utilised its Public Health Act (Chapter 281, Laws of Uganda), to restrict movement within the country and restricting incoming flights. Uganda’s Public Health Act has similar provisions to Kenya’s.
Uganda has further published various statutory instruments pursuant to the Public Health Act and did not invoke its Public Order Management Act, 2013.
The curfew under the provisions of the Public Order Act may not achieve the desired results due to some of the limitations pointed hereinabove. The government should lay emphasis on utilisation the provisions of Section 36 and 169 of the Public Health Act, which in my humble view provide a wider scope than the Public Order Act.
Some of the statutory instruments that have been Gazetted by the CS Health include the Public Health (Declaration of Formidable Disease) Order, 2020. The order provides for the declaration of coronavirus disease as a formidable epidemic disease as required under Section 35 of the Public Health Act. The order was published in the Kenya Gazette on March 27.
The CS Health appears to have published the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 on April 6 in the Gazette notice pursuant to the provisions of Section 36 of the Public Health Act. The rules were published after Constitution Petition No. 120 of 2020, Law Society of Kenya v. Inspector General of Police, CS Interior and Co-ordination of National Government & 3 others had already been filed.
Some of its key provisions include Rule 3, which provides for declaration of the infected area, Rule 4 that provides that there shall be restriction of movement of persons into or out of an infected area, Rule 5 provides for restriction of transport services into or out of an infected area. However, Rule 10 provides that the Cabinet Secretary may exempt any person from the provisions of the Rules on such terms and conditions as he shall certify in writing.
Four areas were gazetted as infected — Nairobi metropolitan area, Mombasa, Kilifi and Kwale counties.
While the CS Health gazetted this rule, the curfew order issued by Matiang'i remained in force.
The rules gazetted by CS Health cover key aspects to contain the epidemic. This is a public health issue under the direction of the line ministry and maintaining the curfew under the Public Order Act may not be advisable.
It would, therefore, be prudent to amend the rules by CS Health to include a general restriction of movement in the entire country between 7pm to 5am for the entire containment period of 21-days. The CS Interior should then de-gazette Public Order (State Curfew) Order, 2020.
While this may not be the best time to question the legality of the curfew and other measures taken by the Government to contain the spread of Covid-19, it is of absolute importance that the provisions of the law are followed for posterity.