KATIBA CORNER

Exam questions Covid-19 and the rule of law

the Constitution says any law that limits rights, made after the Constitution, must make it clear that rights are limited and that limitation was intended.

In Summary

• For inspiration, for problem questions, it is sometimes helpful to turn to the news. Covid -19 offers a good deal of material. So this week’s article is an extract from an imaginary exam paper.

Coronavirus update team lead by Health CAS Mercy Mwangani and Government spokesperson Cyrus Oguna at Afya House on April 23, 2020. In a statement on April 11, Oguna ordered individuals who spent their compulsory quarantine period at private hotels to pay up
Coronavirus update team lead by Health CAS Mercy Mwangani and Government spokesperson Cyrus Oguna at Afya House on April 23, 2020. In a statement on April 11, Oguna ordered individuals who spent their compulsory quarantine period at private hotels to pay up
Image: MERCY MUMO

Examinations for law students typically consist of a mixture of essay questions and hypotheticals or problem questions — to which the students are supposed to apply the law they have learned.

For inspiration, for problem questions, it is sometimes helpful to turn to the news. Covid -19 offers a good deal of material. So this week’s article is an extract from an imaginary exam paper. In real life, law exams are often three hours long and students do four or five questions out of a choice of eight or nine. So, they have about 40 minutes for a question. For each question here there is an abbreviated possible answer –questions are in italics and responses not.

Question 1

Wanjiku is quarantined – because she is the wife of a person who has been confirmed to have the virus. She resigns herself to spending two weeks in uncomfortable circumstances. But after two weeks the quarantine is extended because one person has tested positive. The quarantine facilities (where she is supposed to pay Sh2,000 a night) are dirty, especially the toilets; sheets and towels are not changed. And she is running out of money. The hotel now refuses to let her go until she pays the bill. Discuss whether that detention is in violation of her human rights, and if so whether it is justified.

Even if Wanjiku’s detention is valid according to the law, does this infringe on her human rights? Clearly Yes. She is deprived of her freedom of movement under Article 39. But her rights to associate with others, and perhaps family life, have been affected. Article 51 says Parliament must pass a law to provide for humane treatment for anyone detained. Seriously dirty conditions would not be humane and are prohibited by the Persons Deprived of Liberty Act. But this Act covers only detention for “for reasons of humanitarian assistance, treatment, guardianship or for protection”. She could argue it was for protection – though the protection is mainly for others not for herself. Maybe Parliament has not fulfilled its duty on this law.

The relevant regulations say nothing about paying for one’s own detention. Involuntary payments are either taxes or penalties. This is neither. And Parliament does not seem to have approved this payment. A recent case held that tax takes away property, so is against the right to property in Article 40. So to be permitted, it must be justifiable (under Article 24), and passed by Parliament. Maybe not all courts would agree that tax is deprivation of property, but it could be argued.

The renewal of Wanjiku’s quarantine may have breached another right: To fair administrative action (Article 47). This includes being given notice of a possible decision to anyone affected, with a chance to argue that the decision should not be taken. One is entitled to written reasons for the action. Was even the original quarantine order fair?

Finally, holding Wanjiku for not paying her bill is clearly a violation of her rights under Article 39. Various Kenyan courts have held that hospitals must not detain people for this reason. The same must be true of hotels. The International Covenant on Civil and Political Rights (which is part of Kenyan law) says “No one shall be imprisoned merely on the grounds of inability to fulfil a contractual obligation”. Still less should they be held for failing to pay something without legal justification?

But all these rights can be limited (Article 24). First, any limitation must be for a purpose justifiable in a democratic society. Protecting Kenyans’ lives and health and the viability of the health services must be good reasons. However, limits on rights must be by law – and the law must be clear. But the relevant rules are not clear: for example, they use expressions like handling, treatment, isolation, observation, surveillance and quarantine in a very confusing way. Certainly, Wanjiku’s detention by the hotel is not justified by any law. And even the rules on quarantine.

Any limitation on rights must be 'proportional': Justified by the seriousness of the object – again a court would surely hold this important purpose is justification for a short quarantine detention. But the limits on rights must not be more than necessary to achieve the objective. Here there are doubts. Is renewing the quarantine because of a risk caused by incompetent management of the facility necessary? How long could this go on? Are people being held in quarantine unnecessarily? Surely not only the law that provides for limits on rights must be reasonable, but the way the law is administered must be also.

Finally, the Constitution says any law that limits rights, made after the Constitution, must make it clear that rights are limited and that limitation was intended. This was designed to force lawmakers to recognise when rights are being affected. Though the Act under which these regulations were made is an old one, the regulations are new. They are 'law', even though not an Act of Parliament. Yet they do not have any such statement about limiting rights. Wanjiku may argue that this invalidates the limit on her rights.

She may bring a petition for habeas corpus – an old remedy for release from wrongful detention, and for compensation for violation of her rights (under Article 23).

Question 2

In the light of experience, and with reference to the law and good practice, please develop a Code of Conduct for the Police in dealing with issues facing them during the Covid-19 pandemic, including the fact that the Chief Justice has said that the Inspector-General of Police would issue guidelines on dealing with persons arrested, in view of the reduction in court sittings.

  1. The coronavirus spreads easily from person to person; therefore the Officer in charge of a station must avoid crowding the police cells.
  2. The Constitution is still in force, including the provision about taking people arrested before the courts within 24 hours, unless a weekend intervenes (Article 49(1)(f)).
  3. Bail is a right to be denied only for compelling reasons (Article 49(1)(h)). All efforts should be made to release anyone arrested on reasonable conditions – as the Constitution also requires. Free bail should always be considered as a possibility for minor offences. And officers should bear in mind that a court may not remand a person in custody if the offence carries a possible sentence of six months or less. Offences under the Public Health (Prevention, Control and Suppression of Covid-19) Rules normally carry a maximum of six months.
  4. Rather than arresting a person for not wearing a mask or not wearing it properly, consider the option of advising the person. Many people do not understand the purpose of masks. At this difficult time, it is much better if we can get public cooperation in fighting Covid-19. Familiarise yourself with the guidance on masks from the Ministry of Health. If possible, advise a person where they can get a mask free.
  5. Your position will carry much more credibility if you are wearing a mask – and wearing it properly.
  6. Be sure that you know your powers under these new laws. You are not prevented from advising people about sensible behaviour. But your powers of arrest are limited to those who have committed – or are reasonably suspected of having committed – an offence. So be sure what the offences are.
  7. Quarantine is designed to prevent persons who may have been infected with the virus passing it on to others. It is not a punishment for not wearing a mask or attending a social function.
  8. Physical force is to be used no more than is necessary to achieve the object of effecting an arrest, stopping an offence, preventing violence, etc. This you have been trained on. It should not be necessary to remind officers that it is completely improper – and both a crime and a disciplinary offence – for an officer to beat, kick or otherwise assault any person by way of punishment, or to vent your anger, or even your fear.