On June 20, 2014, Lamu was placed under a night curfew by the Inspector-General of Police. Shortly after, the Cabinet Secretary for Interior imposed a night travel ban on public transport vehicles, including passenger buses and matatus.
Roadblocks, checkpoints and patrols were set up restricting movement into and out of Lamu. The curfew was challenged by the Law Society of Kenya.
The court held that the Gazette notices issuing the curfew had expired
and its perpetual extension was unconstitutional.
In 2017, yet another curfew was imposed on Lamu. Muslims for Human Rights and National Super Alliance brought cases challenging this, too. Ultimately, the court found that the continued extension of this curfew was also unlawful.
Nonetheless, the night travel ban and the other night-time restrictions - and unwelcome sniffer dog searches - continue to shape daily life in Lamu to date.
The case before the court
In April this year, the residents of Lamu filed another case. They argue that the continued enforcement of these various restrictions lacks a legal basis, in contrast to the 2014 and 2017 curfews, which were permitted by the Public Order Act and supported by a Gazette notice.
Further, they said, it violates their rights to movement, equality, human dignity, property, social and economic rights and fair administrative action.
It also violates national values and principles of governance, and the authorities involved are in breach of their public service principles, the residents argued.
In May this year, Justice Jesse Nyagah at the High Court in Garsen issued a conservatory order suspending the continued enforcement of any curfew and night travel restrictions.
The impacts
Beyond the right to freedom of movement guaranteed by the constitution under Article 39, the restrictions substantially impair residents' ability to engage in fishing, transport, retail and other small-scale commercial activities. Women have been among the hardest hit.
Many depended on the night-time economy by selling food, snacks and other goods to travellers arriving on overnight buses and to customers in businesses that operated late into the evening.
As those economic activities disappeared, so too did a vital source of household income, leaving many women struggling to sustain their families.
The direct interference with these socioeconomic
activities continues to substantially impair residents' ability to earn a
livelihood.
As the High Court observed in the Ramogi case in 2020, “The right to earn a livelihood is inextricably intertwined with the social and economic rights enumerated in Article 43 of the Constitution.
A claimant can prove violation of Article 43 of the Constitution by demonstrating an impermissible infringement of their right or ability to earn a livelihood.” The restrictions in Lamu, therefore, implicate not only freedom of movement but also the social and economic rights under Articles 43.
The restrictions have also disrupted family life. Many residents who work in Malindi but have families in Lamu previously commuted home each day.
Today, they are compelled to live apart from their families, maintaining separate residences in neighbouring towns because travelling home after work is no longer feasible.
After nearly 13 years of sustained economic hardship and disrupted livelihoods, the cumulative impact of the restrictions extends beyond financial loss. It has undermined the autonomy, self-reliance and inherent dignity of Lamu's residents, as protected by Article 28.
Why has this happened?
These circumstances present an apparent paradox. How can a constitution that promises such robust protection of rights and fundamental freedoms coexist with their interference for nearly 13 years?
It is necessary to revisit the genesis of these measures and their context. The two curfews and the travel ban were issued after known al Shabaab attacks, following Kenya’s 2011 military intervention in Somalia under Operation Linda Nchi.
The reasons for the curfew are therefore related to national security. This poses two competing constitutional interests. On the one hand, there is the protection and enjoyment of rights and fundamental freedoms embodied in Chapter 4 of the Bill of Rights, and, on the other, the national security interests in Chapter 14 on national security. The constitution provides a framework for reconciling such competing interests through four key provisions:
First, Article 19, which recognises the Bill of Rights as an integral
part of Kenya’s democratic state. It further underscores the purpose of
recognising and protecting human rights and fundamental freedoms as preserving
the dignity of individuals and communities and promoting social justice and the
realisation of the potential of all human beings.
Second, Article 238, which recognises national security. The constitution regulates national security in three ways relevant to this context. One, it can only be exercised where authority is granted by the constitution or legislation.
Two, it has to be pursued in compliance with the law, respect for the rule of law, democracy, human rights and fundamental freedoms.
Three, in performing
their functions and exercising their powers, national security organs shall
respect the diverse culture of the communities within Kenya.
Third, Article 24, guiding how rights and fundamental freedoms may be restricted. Any limitation has to be reasonable and justifiable in an open and democratic society such as ours.
Some main factors taken into account in deciding such limitation are: nature of the right or fundamental freedom, importance of the purpose of the limitation, 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.
If a limitation does not meet the requirements in this provision, it is said to have amounted to a violation/infringement. This is applicable to all the rights except the four rights listed in Article 25, which cannot, for whatever reason, be restricted.
However, none of these four rights is implicated in the Lamu situation. (It is the duty of the court to test the legality of each interference. Repeated violations can be tested as many times as they occur.)
Lastly, Article 47 is also critical because, unlike other provisions, it tests the decision-making merits and process of the law. It requires public actions and decisions to be characterised by lawfulness, reasonableness and procedural fairness.
The provision deters the implementation of legitimate objectives through unconstitutional means. It examines, among other things, whether there is an abuse of discretion in decision making or whether the public officers acted arbitrarily, irrationally, capriciously or in bad faith in the exercise of their mandate.
In light of these constitutional safeguards, it is difficult to say that the constitution has failed the people of Lamu. It has provided the rights they invoke, the legal standards against which executive action is measured and the independent courts before which they have repeatedly sought relief.
Indeed, the very fact that the courts have previously declared the perpetual extension of curfews unconstitutional demonstrates that the constitution continues to operate as an effective check on the exercise of public power.
Nonetheless, the people of Lamu have not enjoyed the constitutional guarantees promised. The constitution, however transformative a charter it may be, cannot, by itself, enforce its own promises.
It depends upon faithful
implementation by those exercising public power and compliance with judicial
decisions interpreting its provisions. A more consequential question thus
arises: can constitutionalism be said to have prevailed in the context of Lamu?
What next?
The matter now rests with the court. It is scheduled for July 23 to first decide a preliminary issue raised by the state: whether the current case stands decided because of the 2017 challenge.
If this preliminary issue is dismissed, the court will be expected to move on and test whether the current night travel ban and curfew-like restrictions are in line with the constitution.
The writer is a litigation counsel at Katiba
Institute
