People seeking safety are trapped at borders across Eastern Africa due to COVID-19 measures

A coalition of international, national, and refugee-led organizations in the Horn, East and Central Africa (HECA) have today called on governments in the region to reopen borders for asylum seekers. The organisations are calling on governments to put in place measures that manage the current health emergency while ensuring asylum seekers can seek protection.

Countries in the HECA region host approximately 4.6 million refugees and asylum seekers and have a long history of receiving asylum seekers and providing them with protection. Before the pandemic, the countries continuously received new people seeking safety and protection from violence and conflict, political persecution, or other threats to their lives. States started closing their borders in March as a public health measure to contain the transnational spread of COVID-19, without safeguards for the many women, men and children fleeing threats to their lives and freedoms and needing to seek asylum.

“While countries in the region are faced with a genuine public health emergency, governments, with support from international partners, must find solutions that respect international human rights and refugee law commitments, including the right to seek asylum. Governments should consider measures such as medical screening or testing, preventative and time-bound quarantine facilities at border crossing points to allow access to asylum seekers,” said Deprose Muchena, Amnesty International’s Director for East and Southern Africa.

Burundi, Ethiopia, Rwanda, and Somalia closed their borders in March 2020. In Kenya, the borders with Somalia and Tanzania closed on 16 May. Asylum seekers and refugees who cross into Kenya are sometimes arrested and returned to the border point of entry.

Blanket border closures contravene international refugee law by denying people in need of international protection an effective opportunity to seek asylum. They also violate the principle of non-refoulement, which prohibits states from turning away people at a border and returning them to a country where they would be at risk of persecution or danger.

Along the DRC-Uganda border, approximately 10,000 displaced people have been camped out since May, waiting to seek asylum in Uganda. Following a 16 June decision by the Uganda government to allow them to enter the country, efforts are underway to prepare for their safe entry, quarantine, and settlement.

“We welcome Uganda’s decision to receive this specific group of Congolese asylum seekers. We urge the government and partners to ensure quarantine conditions for this group are dignified, and to develop more general measures to admit people needing international protection at other border points,” said Robert Hakiza, Coordinator of the Global Refugee-Led Network-Africa Chapter.

On Uganda’s border with South Sudan, for example, hundreds of people displaced by recent fighting between government soldiers and armed groups in Central Equatoria State are stuck, hoping to cross into Uganda. They are living in makeshift structures and are in urgent need of food, proper shelter, medical care, and access to clean water. Uganda closed its borders on 20 March.

“Regional bodies such as the East African Community (EAC), the Intergovernmental Authority on Development (IGAD) and the African Union (AU) should provide more leadership and guidance on how countries can safely open their borders to asylum seekers. The international community must also step in to provide the needed assistance to displaced persons, whichever the side of the border they are on,” said Lydia Zigomo, Oxfam’s Regional Director in the Horn, East and Central Africa.

The organizations are calling on regional bodies to help and encourage governments develop procedures and policies that would allow movement across borders for individuals wanting to seek asylum. This should include workable protocols for COVID-19 screening, testing and quarantine, and special measures that address the needs of marginalized groups, such as unaccompanied children, particularly in quarantine facilities.

“While the EAC has been instrumental in supporting harmonized border screenings to allow the movement of cargo across the region, they have been silent about access to asylum-seekers. Regional bodies must not leave refugees out of their COVID-19 response plans,” said George Kegoro, Executive Director of the Kenya Human Rights Commission.

Notes to editors:

• The Universal Declaration of Human Rights and the 1951 Convention relating to the Status of Refugees, require states to respect the right of people to seek asylum and to uphold the principle of non-refoulement, which prohibits them from rejecting and returning asylum seekers who arrive at their borders. All the Horn, East and Central African countries are state parties to the 1951 Convention.
• The right to seek and be granted asylum and protection from return is also provided for in the African Charter on Human and Peoples' Rights and the 1969 OAU (now AU) Convention Governing the Specific Aspects of Refugee Problems in Africa. Again, both treaties have been signed by all countries in the Horn, East and Central Africa region. In addition, these rights and protections have been included in the constitutions and refugee laws of many countries in the region including Uganda and Kenya.
• There are currently over 1,420,000 refugees and asylum seekers in Uganda, 763,000 in Ethiopia, 1,089,000 in Sudan, and 494,649 in Kenya.
• The EAC published a regional COVID-19 response plan on 30 April. It aims to facilitate free movement of goods and services in the EAC region while minimizing cross border movement of people. It does not mention refugees or asylum seekers.
• IGAD published a regional COVID-19 response strategy on 20 April. The strategy notes the importance of protecting refugees, IDPs, migrants, host communities, and other populations in border areas, and provides that IGAD will support members states to: Establish screening measures for travellers and migrant people at border crossings; share information on cross-border migration of refugees and other migrant populations with national health authorities for appropriate care and management; set up isolation and quarantine facilities at border crossing for migrant populations as well as for refugees and IDPs; and share best practices and knowledge on protective measures for vulnerable and high-risk groups with limited access to health care.
• The African Union has appealed to governments to adhere to international law and respect of the rights and human dignity of migrants and refugees but has to date not provided practical guidance on how to do this, especially in relation to complex issues such as border management during the pandemic.
• The 10,000 displaced people at the border of DRC and Uganda fled attacks on villages in the War-Palara and Panduru chiefdoms. The displaced, most of whom are from the Alur ethnic group, are staying in the locality of Mon-Zeu, in the chiefdom of Alur Djuganda, in Mahagi territory, in the west of Ituri province near DRC’s border with Uganda’s Zombo district.

Organizations supporting the press release:
1. AAMIN Organization (Mogadishu, Somalia)
2. African Youth Initiative for Development (Nairobi, Kenya)
3. Amnesty International
4. Care and Assistance for Forced Migrants (Uganda)
5. Centre for Peace and Advocacy (Uganda)
6. Community Action for Creative Innovation (Koboko, Uganda)
7. Community Action for Transformation (Imvepi, Uganda)
8. East African Centre for Forced Migration
9. DIGNITY Kwanza (Tanzania)
10. Finn Church Aid
11. Global Refugee-Led Network-Africa Chapter
12. Good-Deeds (Nairobi, Kenya)
13. ICAN South Sudan (Bidibidi, Uganda)
14. Initiative for Nurturing Vulnerable and Empowerment for Resilience (Kakuma, Kenya)
15. International Refugee Rights Initiative
16. International Rescue Committee
17. IYOUTH IFUTURE (Kakuma, Kenya)
18. Jesuit Refugee Service
19. Jump Over Seven Feet (Kajiado, Kenya)
20. Kandana Refugee Association (Kenya)
21. Kenya Human Rights Commission
22. Kintsugi (Nairobi, Kenya)
23. Kituo cha Sheria-Legal Advice Centre (Kenya)
24. L’Afrikana (Nairobi, Kenya)
25. Oxfam International
26. Refugee Consortium of Kenya
27. Regional Network on Peace and Stability (RENOPS)
28. Shabab Peace and Environment Action Group (Adjunami, Uganda)
29. Solidarity Initiative for Refugees (Kakuma, Kenya)
30. SOS Women and Children in Disaster (Kampala, Uganda)
31. South Sudan Civil Society Forum (SSCSF)
32. South Sudan National Consortium of Human Rights Defenders
33. South Sudan Transitional Justice Working Group
34. The Organization for Children Harmony (Kiryandongo, Uganda)
35. Vijana Twaweza (Kakuma, Kenya)
36. Young African Refugees for Integral Development (Uganda)
37. Young-Adult Empowerment Initiative (Kiryandongo, Uganda)
38. Youth Education and Development Association (Kakuma, Kenya)
39. Youth Social Advocacy Team (Rhino Camp/Arua, Uganda)

For media enquiries or to request an interview, please contact:

Oxfam in the Horn, East and Central Africa
Martin Namasaka, Regional Media and Communications Advisor
Mobile: +254731953944
Email: martin.namasaka@oxfam.org
Twitter: @OxfamEAfrica
Facebook: @oxfamineastafrica
Website: www.oxfam.org I https://heca.oxfam.org

Amnesty International
Robert Shivambu, Media Manager
Mobile: +27 11 283 6000 or +27 83 437 5732
Email: robert.shivambu@amnesty.org or press@amnesty.org
Twitter: @amnestypress or @AmnestyEARO

Global Refugee-Led Network (GRN)-Africa Chapter
Robert Hakiza, Coordinator
Mobile: +256 775875519
Email: robert@yarid.org

Kenya Human Rights Commission
Medika Medi, Media Manager
Mobile : +254721724264
Email : mmedi@khrc.or.ke

Twitter:@thekhrc

The latest attacks on the Judiciary have been triggered by, and are a response to, the recent public statements that the Chief Justice has issued, the first that questioned the constitutional validity of Executive Order No. 1 of 2020, through which President Uhuru Kenyatta announced a structure of government that was open to an interpretation of the existence of a hierarchical relationship in the government that purported to make the Judiciary and the Judicial Service Commission, among other independent bodies, subservient to the executive.  The second public statement by the Chief Justice dwelt on a number of public issues including the one-year delay by the President to appoint 41 judges selected by the Judicial Service Commission, concern about the continuing disobedience of court orders by the government, including a High Court order compelling the President to appoint the 41 judges. The Chief Justice also revealed a deterioration in the relations between the President and the Judiciary, resulting in a complete breakdown in the channels of dialogue.

The Attorney General, Paul Kariuki, responded with a statement attacking the Chief Justice. There has also been a petition seeking the removal of the Chief Justice from office, against whom anonymous attacks have also surfaced on social media and on posters erected on public highways. None of these forms of attack is new: after President Kenyatta publicly promised to “revisit” the Judiciary after the Supreme Court annulled his reelection in 2017, the Judiciary came under very similar attacks.

On 10^th February 2020, the KHRC wrote a letter to President Kenyatta urging him to take active steps to make the outstanding appointments relating to 41 judges as directed by the High Court. The letter emphasized the finding of the High Court that the delay in appointing 41 judges was unconstitutional and urged that to avoid further offending the Constitution, the President should make the appointments without further delay.

The letter noted that the vetting of candidates for appointment as judges is the responsibility of the Judicial Service Commission and that any role for the security and intelligence agencies is as agents of the JSC. As agents, the security organs cannot carry out a vetting process outside that which the JSC requests or authorizes. In these circumstances, it is difficult to understand how the President could have derived background information on the candidates outside the framework that the JSC had put in place.

The dangers of a vetting process outside the purview of the JSC have immediately become clear because the investigative agencies which cleared the candidates for appointment, while acting for the JSC, subsequently came to a different conclusion when the Executive branch asked them to investigate the same candidates. Without multiple vetting processes, such conflicting investigative findings, the resolution of which lacks a mechanism, would have been avoided.

The letter further noted that since any concerns on the part of the President affected only a few judges, holding up the entire list subjected the judges to needless suspicion and that the only way to address this would be to make public the full details concerning the basis for any objections against the appointment of any of the judges.

The KHRC is concerned that, in addition to the well-founded concerns about a lack of political leadership that has resulted in a breakdown in the process of appointing the next batch of judges, attacks on the Judiciary will only worsen the situation, making it more difficult for the judiciary to operate at an optimal level. Since the Judiciary does not belong to or serve an individual, the ongoing disagreements do not hurt any of the individuals involved but the public that both the government and the Judiciary are expected to serve.

In all this, the personal position of the Attorney General, Paul Kariuki, is extremely troubling. As a member of the Judicial Service Commission, the Attorney General participated in proposing the judges whose appointment is the subject of the objection by the President, with the support of the Attorney General. The ability of the Attorney General to run with the hares and hunt with the hounds is a staggering lack of principle on his part and raises legitimate questions about the character of the government he serves in.  Rather than provide leadership that would resolve the ongoing crisis, the Attorney General has compounded matters with an appeal against a court decision compelling the President to appoint the judges. The personal role of the Attorney General in the current breakdown requires further examination because he is an active enabler of the constitutional breakdown that the President is promoting.

The KHRC reiterates that request contained in its letter to the President and makes the point that if for any reason, the President is unable to make the appointment, he must convene a meeting with both the JSC and the Law Society of Kenya, through which he will explain and justify his position.

This level of attack on the Judiciary is an unfortunate feature of the Jubilee government. The vilification of the Judiciary affects public confidence in the institution and directly undermines the role that the Judiciary is established to play. President Kenyatta must choose whether he would like to be remembered as the president during whose reign the Judiciary was destroyed.

Nairobi 15^th June 2020

The Kenya Human Rights Commission.

A key concern arising from this order is the inclusion of the judiciary, independent offices and constitutional commissions in the structure of government, in a manner that allocates them subservience over the office of the President. When he took power in 2013, President Uhuru Kenyatta issued the first of the executive orders that he has since issued, regarding the organization of his government. The order designated the country into 18 ministries, themselves also divided into several state departments. The 2013 executive order soon gave rise to litigation in the High Court, based on concerns that the President had purported to assign to the Attorney General, responsibilities that the Legal Education Act assigns to a Cabinet Secretary. In the end, the High Court upheld the objection and declared that “any executive order that purports to assign... cabinet secretarial functions and powers contrary to the letter and spirit of the Constitution and the law, is invalid, null and void.” The court further held that whereas the Attorney General, is a member of the Cabinet, he is not a Cabinet Secretary and therefore cannot … perform or purport to perform the functions specifically reserved for a Cabinet Secretary under any piece of legislation.”

The High Court thus invalidated the attempt by the President to assign, through the order, responsibility over the Legal Education Act when the Parliament had assigned the same responsibility to a cabinet minister.

The next executive order, issued in 2016, listed not only the ministries that would form the government but also extended its coverage to independent entities including constitutional commissions, the judiciary and the Judicial Service Commission. This approach has been repeated in all the executive orders since then.

In 2018, the Law Society of Kenya obtained orders from the High Court declaring that the purported inclusion of these independent offices in the presidential executive orders was unconstitutional.

Thus, notwithstanding two High Court judgements, the President has carried on with the practice of issuing executive orders whose contents offend not only the Constitution but also the express orders of the High Court.

The 2020 executive order also appears to have provided the occasion for extending the internal wrangles within the Jubilee party whose senior figures have been dismissed from positions of leadership in the Parliament. The re-designation of the executive office of the Deputy President into a department within the office of the president is seen as a demotion of the Deputy President and a consolidation of the political ostracisation to which Mr. Ruto has already been subjected.

The President’s actions fit into growing concern that the country is being prepared for a referendum for the amendment of the Constitution about which the President addressed the country on Madaraka Day. On that occasion, the President cited Tom Mboya’s book “Freedom and After” and made the point about what he called “Constitution rigidity” “That the constitution cannot be useful to a country if it is an end in itself.  A good constitution must be responsive to the aspirations of a nation and be a means to a greater end.  

Further, “if the political architecture provided by a constitution cannot support the growth and progress of a nation, that constitution becomes a cancer to the body politik”

There has been no public discussion of what ails the country in relation to which constitutional reforms might be the remedy. While the Building Bridges Initiative, which the President supports, has purported to be the framework for a response to the country’s political challenges, the process has remained under the personal control of the President and Mr. Raila Odinga, and lacks both legitimacy and genuine participation.

The fear now is that the stage is being set for an attempt to impose on the country, the personal preferences of the President which will be presented as the genuine needs of the country. This approach cannot work and is likely to subject the country to the kind of political anxiety that it has faced in the recent past.

The KHRC would like to remind the President that since the announcement of the first case of COVID-19 in Kenya on 12^th March 2020, the country’s economy and human survival has faced great peril. Citizens continue to experience significant social to economic stress, resulting from job losses and the closure of businesses. Citizens also continue to live under police violence staged as a way of enforcing the curfews that are a response to COVID -19.

In conclusion, the rule of law requires the obedience of court orders. This is what the President must now do by withdrawing the executive orders that the High Court has already passed judgement against. The KHRC is concerned that rather than encourage and advise the President to comply, the Attorney General is encouraging the disobedience of the orders of the High Court.

Secondly, there can be no constitutional amendment that is not accompanied by appropriate levels of preparatory political work. At this point in time, with the country addressing rising cases of COVID-19 and the economic ravages measures against it have caused, the national priorities are against high politics and in favour of concentrating on what is necessary for the country to survive. Further, any constitutional amendment would require prior political consultation and consensus building of an appreciable level. This has not happened and cannot now happen, given the political context and the new priorities.

Nairobi, 8^th June 2020

Kenya Human Rights Commission

Ensure Access to Health Care, Sanitation, Information

Kenyan authorities are potentially facilitating transmission of the Covid-19 virus while forcefully quarantining tens of thousands of people in facilities that lack proper sanitation, protective equipment and food, Human Rights Watch, Kenya Human Rights Commission, and Journalists for Justice said today.

The authorities have also held crowds of people in the arrivals area at the Nairobi airport for more than four hours with no social distancing, sanitizers or masks; ferried people in packed buses with little ventilation and, at the quarantine facilities, failed to enforce quarantine guidelines issued by the Health Ministry. The authorities also have forced people into quarantine for violating curfew or for not following orders to wear face masks.

“Kenyan authorities are exposing people to a risk of infection in poorly managed and ill-equipped quarantine facilities,” said Otsieno Namwaya, senior researcher at Human Rights Watch. “Despite credible accounts of people with traumatizing experiences in forced quarantine, conditions have not improved.”

Between mid-April and mid-May, researchers spoke to a total of 26 people, including 22 people in 11 quarantine facilities across the country – among them the Kenya School of Government and Kenya Medical Training Institute in Nairobi – as well as three front line doctors and a senior nurse. Those forced to quarantine were incoming travelers, people who had contacts with travelers, and, in some cases, people who violated the curfew imposed on March 27 or orders to wear masks in public.

On March 15, 2020, President Uhuru Kenyatta announced the closure of all schools and colleges to curb the spread of the virus. On March 22, the health cabinet secretary, Mutahi Kagwe, banned international flights in and out of Kenya, except for cargo flights and announced a mandatory 14-day quarantine for all incoming travelers, and those who may have been in contact with them. However, the authorities did little to prepare facilities and staff on how to handle those in quarantine.

As of May 26, Kenyan authorities said they had quarantined and tested 64, 264 people. About 2 percent- 1,348- tested positive for Covid-19, among 50 have died, and about 405 have recovered and been discharged. On May 4, the authorities said they had started mass testing in the capital, Nairobi, and in Mombasa’s old town, where residents were reluctant to present themselves for testing out of fear of being forcefully quarantined, media reported.

The authorities in Nairobi had earlier said that travelers at the airport could choose between paying to stay in a hotel or staying without charge in a government quarantine facility. Unlike in most other countries with a significant number of people in quarantine, in most cases people were not allowed to self-quarantine in private homes where feasible.

People interviewed described poor conditions of the quarantine facilities, including lack of bedding, water, food, and cleaning supplies, including soaps and detergents. They said they weren’t told of test results and that staff did not adhere to the government’s own protocols, such as wearing face masks or other protective equipment, to ensure that those quarantined do not become exposed to the virus.

A 22-year-old man who was quarantined at the Kenya Industrial Training Institute (KITI), in Nakuru, Rift Valley, following his arrival from France on March 23 said:

“When I checked in, I found there was no electricity, no bathing water, no food and no water to drink. The beds had no mattresses or beddings. I slept on the spring bed with no mattress and nothing to cover myself. They told me I had to pay for water.”

Many others described similar conditions in other facilities across the country and said that the authorities sometimes extended quarantine periods from the initial mandatory 14 days, to more than 30 days, even when people tested negative several times. All those interviewed were asked to pay for accommodations, food, and other costs before being allowed to leave. Many of those who could not pay were held for additional days and, in one instance at Kenya School of Government, police were called in to beat those who persisted in pleading their inability to pay, victims and witnesses said.

On May 14, Human Rights Watch, Kenya Human Rights Commission, and Journalists for Justice wrote to the health cabinet secretary, Mutahi Kagwe, requesting information on the abuses in quarantine centers, and the government’s response to the complaints of those in quarantine, conditions in the facilities and the issue of payment for quarantine. Secretary Kagwe has not responded.

"It is disturbing that people who arrived from abroad are herded straight into these facilities without considerable thought being given to the wellbeing of those sent to these facilities,” said Kwamchetsi Makokha, program adviser at Journalists for Justice, a Nairobi based organization. “It is even more shocking that some people have stayed in quarantine for periods of up to 30 days, well beyond the official 14-day period, because they were unable to pay."

Among those forced into quarantine for breaching the Covid-19 curfew was Carolyne Akumu, a 35-year-old mother, together with her month-old child. Akumu, said that Busia county officers arrested her on May 1 as she rushed home at 7:10 p.m., 10 minutes after the curfew time. Police forced her to go to what she described as a derelict and dusty quarantine facility in Nambale, 40 kilometers from Busia, where she slept on a cold floor with nothing to cover herself and her child. Akumu said she tested negative the following day, and was released on the second day, following intervention by civil society groups.

The authorities should urgently take measures to improve conditions in public quarantine facilities, including regular cleaning and fumigation, change of bed linens, provision of meals in all facilities and adequate psychosocial support and medical care where need be, Human Rights Watch, Kenya Human Rights Commission, and Journalists for Justice said.

In addition, the authorities should ensure adequate care and access to communication, including in accessible formats, with the outside world for those in quarantine, and waive fees associated with quarantine and related medical care for those who cannot afford them. Individuals should be assessed for self-quarantine, provided that they are able to maintain social distancing and proper support from a caregiver.

Under the International Covenant on Economic, Social and Cultural Rights, which Kenya ratified in 1972, everyone has the right to “the highest attainable standard of physical and mental health.” Governments are obligated to take effective steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.” However, any restrictions they impose for reasons of public health or national emergency need to be lawful, necessary and proportionate and be carried out in accordance with the law. They cannot be imposed in an arbitrary or discriminatory manner.

“President Kenyatta should demonstrate to the world that Kenya can implement its quarantine policy in a humane and accountable manner,” said George Kegoro, executive director at Kenya Human Rights Commission. “The president should ensure that government meets all quarantine-related costs, as cabinet secretary for health Mutahi Kagwe promised on May 6.”

Dusk to Dawn Curfew

On March 25, President Kenyatta announced a nationwide dusk-to-dawn curfew starting March 27. On April 3, the authorities made it mandatory for everyone to wear masks in public places and introduced mandatory quarantine for those who did not wear masks or breached curfew, but parliament rejected that requirement on April 21. Researchers spoke to three people who said the police had arrested them days before the law was presented to parliament and placed them in mandatory quarantine for breaching curfew or failure to wear a mask in public.

Kenyan media have also reported several other incidents in which police forcefully quarantined people for breaching curfew without evidence that they had been exposed to the virus. Kenyan activists have gone to court to challenge government quarantine policy. On April 18, Kenya Legal and Ethical Issues Network on HIV and Aids (KELIN), Mombasa-based Muslims for Human Rights (MUHURI) and seven Kenyans who had served various periods in quarantine filed a petition seeking to have the government cover all expenses incurred by people in quarantine facilities or in isolation at government health facilities. The petitioners alleged that the government carried out quarantine measures in an abusive, degrading and unconstitutional manner.

Mandatory quarantine for breaching curfew or not wearing a mask is problematic. It is not the least restrictive measure possible, it can amount to detention that has been imposed without warning, and the conditions in quarantine may be undermining public health, compared with self-quarantine at home, by increasing exposure to the virus.

Failure to Provide Sanitary, Humane Conditions

On March 27, five days after Kenya imposed mandatory quarantine for international arrivals, the Health Ministry published a quarantine protocol describing the standards for quarantine facilities. The protocol requires the facilities to be well ventilated, ensure social distancing, have regular cleaning and disinfection of laundry, dedicated linen and eating utensils for each person in quarantine, and for the facilities to regularly provide detergents for cleaning.

Researchers found that the facilities did not uphold the protocols. Three people interviewed – who were quarantined at the Kenya School of Government, Pride Inn, and a 29-year-old man at KMTC Nairobi – described dusty and neglected facilities and said they were responsible for cleaning their own rooms and bathrooms but often were not provided with cleaning supplies.

Some of the facilities outside Nairobi had neither beds nor bed linen, and those admitted there had to spend nights on cold floor. For example, Kisoko Girls High school had no beds, linen or healthcare staff to look after those admitted other than security guards at the gate.

In the Kenya Industrial Training Institute (KITI) in Nakuru county, those quarantined were given bed linen two days after admission but said it was neither washed nor replaced for the whole quarantine period- sometimes more than 14 days. In at least four facilities – KITI, Kenyatta University Conference Centre, Cooperative University Retreat Centre and Kenya School of Government – those interviewed said that the Health Ministry did not provide detergents and that those in quarantine had to either buy the detergents or use what may have been left by previous occupants.

At KITI, four of those who had been quarantined said they had to buy food, water, and soap and clean the facility themselves. A 22-year-old man quarantined at the facility recalled:

“There was no electricity, no bathing water, no food and no water to drink. The entire place was dusty. The beds had no mattresses or beddings. I slept on the spring bed with no mattress and nothing to cover myself for two days when they brought us beddings. They told me I had to pay for water.”

Failure to Protect People Against Infection

Two arriving travelers said they believed they may have been infected either at the airport arrivals lounge where the authorities held crowds of people from various parts of the world for hours or inside fully packed and poorly ventilated buses that ferried them from the airport to quarantine centers.

Buses used to ferry the arriving travelers to the facilities were both poorly ventilated and, in some cases, packed beyond capacity, and police officers failed to observe social distancing measures or wear protective equipment on the buses, those interviewed said.

Four people said they believed they could have contracted the virus in quarantine facilities, as the authorities failed to enforce safety measures, including social distancing and not sharing cutlery, and dispensing tea from shared dispensers without using gloves.

In nearly all facilities, staff seemed unaware that people would be quarantined there and some were exposed to infection in the facilities. At the Lenana school facility in Nairobi, a 29-year-old staff member who later tested positive for Covid-19 said he was not informed when the facility received its first batch of people for quarantine on March 24. He was then made to quarantine there himself. The staff member said:

“They arrived at 1a.m. and since I am the one who was at the gate, I checked them in and showed them where to sleep. No one bothered to tell me who they were. After I finished, my boss told me to join them in quarantine since I had been exposed."

Failure to Allow Self-Quarantining for People at Risk

Despite the protocol allowing those with preexisting conditions or pregnant women to self-quarantine at home, researchers found that facilities admitted pregnant women or people with diabetes and hypertension. At risk people or people with disabilities were held for several days at Kenyatta University Conference Centre before they were released or transferred to other facilities following complaints.

At Busia’s Kisoko Girls High school, on May 1, police and county health officials forcefully quarantined a 35-year-old woman, Carolyne Akumu, together with her one-month old baby for breaching the curfew, contrary to quarantine protocol. In another incident on the same day, police and county enforcement staff forcefully quarantined a pregnant woman at the same facility in Busia for violating curfew, even though guidelines have included pregnant women among the vulnerable that should not be quarantined.

 Extensions of the Quarantine Period

Some of those interviewed said that government officials extended the quarantine beyond the initial 14 days for another 14 days or for indefinite time periods whenever someone in the same quarantine facility tested positive for the virus. People interviewed who were quarantined in KITI, the Kenya School of Government and Kenyatta University Conference Centre, said they suspected that the extensions of quarantine periods could have been out of the knowledge that there was a failure to enforce social distancing or provide protective equipment inside the facility. In any case, the unsanitary conditions in the facilities may have contributed to continuing exposure to the virus and thus extension of the quarantine. In other instances, the authorities also extended the stay for people who could not pay the cost of quarantine, even though some arriving travelers were promised that government facilities would be free.

A 29-year-old man who had been in quarantine at Kenya Water Institute in Nairobi said he was transferred to the Kenyatta University Hospital for isolation after he tested positive for Covid-19. After seven days in isolation, he said he was told he would be allowed to go home but in fact was held six days more because he could not pay the quarantine and isolation costs.

The indefinite extensions caused anxiety in those quarantined, ranging from fear of losing their jobs or delay in seeing loved ones. One interviewee said:

“I don’t have money because I had lost my job in Dubai, but I am now in forced quarantine in a government facility. We had been told quarantine would be 14 days and free, but I have been here 30 days. I have twice tested negative since I arrived, yet I am still here, and I have to pay Ksh 2,000 (US$20) for each day I have spent here.”

A 28-year-old man who was at Pride Inn hotel in Nairobi quarantined together with his family of four said he was told at the end of 14 days he had to pay Ksh 420,000 ($4,200) for himself and four other family members to leave. The authorities extended their stay by another 14 days after someone in their facility tested positive.“I called relatives who chipped in, but I am not sure how I am going to pay for the extended period.”

At Kenyatta University, four men who had tested negative after two tests on the eighth and twelfth day, were to have been allowed to go home on the 14th day. But, since they could not pay, the authorities held them for an additional eight days, a total of 22 days. The men were so distraught that they threatened to take their own lives, following which they were allowed to leave.

Lack of Adequate Medical Care, Counseling

Those who tested positive for Covid-19 said that the authorities transferred them to isolation wards at various hospitals where they did not receive any medical care. They told researchers they felt neglected by hospital staff and Health Ministry officials who did not make any attempts to manage the virus or provide them with medication.

A 34-year-old man who had been admitted at Kenyatta University hospital after he tested positive said he was forced to send for painkillers and lemons outside the hospital after he got a headache. A 35-year-old woman who tested positive and was admitted at Mbagathi hospital said the hospital only provided her with food and water, but no medication during the eight days she was in an isolation ward.

The authorities did not provide psychosocial counselling or mental health services for people in quarantine, though one person died by committing suicide and five others attempted to take their own lives. Media reported how on May 27, staff at KITI found the body of a 27-year-old South African, Elizabeth Holloway, who had been forcefully quarantined there, hanging from the ceiling of her room with a piece of cloth.

Two people who quarantined with her told researchers that she had called management the day before about the unsanitary conditions there and asked to be transferred, but that the management had ignored her pleas.

Two days after Holloway took her own life, a Kenyan woman at the same facility attempted suicide. A 22-year-old man who was in the facility told researchers:

“There were no counselors, and so those of us who were there with her started talking to her until she dropped the idea of committing suicide.”

Insensitivity in Testing, Communicating Results

Those who tested positive said the testing, management, and communication of results lacked transparency and failed to meet the required professional standards. Most said they were told their results verbally, by an unidentified person calling them by phone, and never given lab results. A 32-year-old man admitted at Kenyatta University hospital at the end of March said the hospital staff became hostile when he requested documentary evidence of the lab results.

A medical practitioner admitted at Mbagathi hospital said the hospital staff ignored his repeated requests for lab results. Another medical practitioner recalled:

“They told me it was positive but didn’t show me any paper. It was always a verbal communication… It was that way the whole time… no documentary evidence. Many people were not convinced they were being told the right results.”

Many of those who tested positive also told researchers that the insensitive way officials relayed results and lack of information about what would happen to them caused them enormous stress and anxiety.

Stigmatization

Most people interviewed said that quarantine facility staff treated them poorly. A 36-year-old woman who attempted suicide at KITI in Nakuru said:

“I got a panic attack after one of our colleagues committed suicide. I called for help, but the doctor just laughed at me.”

People at the facility told researchers that the surrounding community and many of the staff at the facility would reject their money when they tried to buy food, on suspicion the money was contaminated. A 29-year-old man who had been quarantined there said:

“We didn’t have food inside the facility. We wanted to buy food from vendors over the fence, but they would decline our money. Staff who we thought would help would also not take money from us. We would wait for one nurse who would accept to help buy for us food from outside, but we had to send the money to her via mobile money.”

At one quarantine centre, interviewees said, on occasion kitchen staff declined to serve those in quarantine, compelling a security guard to bring the food. At a hospital in Nakuru, a 34-year-old woman who had been admitted there pending Covid-19 testing said that hospital staff avoided her even after she tested negative. She said:

“They would not talk to me. They would drop meals at the floor at the entrance of my ward and run away without telling me. I would discover the food cold on the floor at the door, sometimes hours later.”

The COVID 19 crisis has brought to the fore unprecedented burial processes in Kenya. It’s anticipated that as the effect of pandemic ravage on, burials will be conducted under extraneous circumstances. The burial of James Oyugi at night and in a shallow grave has sparked public outcry from Kenyans of all cultural and religious backgrounds. James is said to have succumbed to the Corona Virus.
We are aware that the Ministry of Health has developed regulations on the disposal of victims of Coronavirus. The regulations provide that before the internment of persons who succumb to COVID-19 commences, the family must be informed on burial procedures, accorded an opportunity to express their religious, cultural and personal rites to show respect for the deceased. Further, the guidelines recommend that burials be conducted during the day. The treatment accorded to Coronavirus victims will determine the success of the government and public responses provided so far. If the government discriminate and stigmatise patients then most people will hesitate to come forward and seek help. Additionally, stigma and undignified treatment of persons who succumb to the coronavirus might cause a family to disregard the guidelines developed to bury their deceased in dignity. Let’s draw from the HIV/AIDS response, stigma and discrimination only slowed down prevention and management processes of HIV. In the words of Phillip Guadalla, ‘any stigma will defeat dogma’; let’s allow information and caution a chance over the humiliation of grieving families.
We call on all government actors to uphold human dignity and conduct the burials in ways that respect the place and wishes of the family and one that embraces the family rather than stigmatise them. Most Kenyan cultures position burial ceremonies as the final rite of passage. It is a time to celebrate the life of a loved one, come to terms and grieve a major loss even in a minimalistic manner. Measures to acknowledge the importance of burials during this period will go a long way in strengthening the actions taken so far.
Further, we urge the National and County governments to ensure equal treatment to all persons who succumb to Coronavirus. Most importantly, we urge the government to ensure that the communication on coronavirus while remaining factual, serves to inspire the people Kenya noting that most victims recover as compared to the incidences of death.

Nairobi, 14^th  April 2020.

On 26 March 2020, President Uhuru Kenyatta took part in a teleconference meeting of the Bureau of the African Union Heads of State and Government, during which Africa Centres for Diseases Control gave a briefing characterising the rapid spread of the COVID-19 as “an unprecedented public health disaster”. The Bureau called for a coordinated response in dealing with the crisis. The Bureau meeting follows an earlier statement by the African Commission on Human and Peoples Rights, which outlined 12 elements that constitute a human-rights-based response to COVID-19.

However, in several respects, Kenya’s responses to COVID-19 do not meet the aspirations of the Bureau or the standards communicated by the Africa Commission.  The challenges presented by the COVID-19 require an engaged political leadership. Following a season of political rancour which had badly divided the country, Kenya needs deliberate gestures of a political commitment to tackle the crisis. President Uhuru Kenyatta was initially disengaged from leading responses to the coronavirus pandemic, choosing to delegate his leadership roles. However, the President has eventually stepped up and is now frequently talking to the country personally, rather than through his officials.

Kenya’s political leadership needs to demonstrate wisdom, reassurance and understanding, but this has not always been the case, as in Mombasa, where police used violence to enforce the government-instituted curfew. The political leadership should persuade, rather than force, the public to accept the measures the government deems necessary for addressing the threat of the coronavirus.

A curfew currently being enforced in the country was meant to control the spread of the disease. However, the implementation has been chaotic and abusive and shows that rather than persuade the public to comply, the government has chosen the path of coercion to achieve compliance, which besides undermining the purposes of the curfew, has also led to tragic consequences that only undermine the legitimacy of the government.

The curfew does not seem to regard the needs of daily wage earners who must work daily or the limitations of the poorest families who have no capacity to stock large amounts of food or water. A curfew or lockdown needs to take into account not only these realities but also the practical logistics of people who live in densely populated urban neighbourhoods, whose circumstances already negate social distancing and who need special logistics to live.

The low-income economy and its logistics need to be in better focus. Food supply and distribution operate through this low-income economy and stakeholders must be identified, planned for and consulted. Observed in Wuhan, China and according to FAO expertise, shorter food chains and localised food systems can help stop a health emergency becoming a food crisis.

Further, the decision to impose a countrywide curfew does not seem to be evidence-led. The evidence suggests that the confirmed cases are still relatively few and are concentrated in a small part of the country, with Nairobi as the epicentre. A more evidence-based decision would have been to lock down Nairobi completely, preventing people from leaving or coming into the city, and to carry out similar measures in Mombasa and its outskirts, before making further assessments. A localised lockdown would be easier to manage and would be more targeted.

The statement by the Africa Commission emphasised that “[i]n times of public health emergencies, members of the public have the right to receive factual, regular, intelligible and science-based information on the threat COVID19 poses to their health, the role and impact of the measures adopted for preventing and containing the virus, the precautionary measures that members of the public should take, and on the scale of the spread.”

While the Kenyan government has provided periodic media briefings, there is still a significant information gap. It has not outlined a coherent picture of how it perceives the threat of coronavirus or how its responses meet the threat. As a result, there is so much that the public should know but does not.

Further, the decision-making power on responses to the coronavirus is concentrated among a small circle of individuals who are all based in Nairobi and excludes the voices of the rest of the country. While the government says it is talking to medical professionals, it needs to further diversify and pluralise decision making so as to increase credibility and chances of buy-in. The government should create a robust public dialogue about the coronavirus epidemic to include not just the Executive and the Legislature, but also the Judiciary, the County Governments, Constitutional Commissions and Civil Society. It should also create a channel for meaningful public consultation.

Also, there is a need for greater transparency around the data that the government is relying on to reach its decisions, as well as the processes that are producing the decisions evident in various official actions. There needs to be consensus on how to implement treatment, prevention and mitigation measures. Public education and dialogue need to occupy a more central place in Kenya’s response to the coronavirus pandemic.

The clinical aspects of the responses to the crisis show a number of gaps. The strategy adopted seems to be one of containment: identifying and isolating the infected and those they contacted. The authorities have no publicly known starting point from which to trace suspected cases of infection. They need to urgently increase testing out of Nairobi, especially in high-risk counties. The country needs to plan on the basis that a large number of people will need to be quarantined, as the number of those infected grows. They should plan for facilities to enable mass quarantining and communicate these plans publicly. The effectiveness of contact tracing is important if the prevailing strategy is to work.

Plans should factor in the health workers who may need to be quarantined after exposure to the virus. Health workers will need to be motivated with financial rewards commensurate with the extremely high risks they take and also protected from those risks.

While COVID-19 presents special risks to the elderly and those with underlying medical conditions, the government has not demonstrated an awareness of these two categories or made any specific provisions for them. As regards underlying conditions, tuberculosis infections have increased and Kenya is one of the 30 countries with the highest rates of infection in the world. This situation is compounded by the high prevalence of HIV infections. TB and HIV patients need special responses. Amid the challenges of COVID-19, the old medical issues remain: maternal health and cancer cases deserve special mention. The space to deal with these must be preserved.

We commend the establishment of the COVID-19 Emergency Response Fund, which we view as an act of political leadership. However, there is already concern that the Fund could be turned into an opportunity for political spectacle, where the rich conspicuously flaunt their giving. As Kenyan taxpayers have already generously funded this government it is reasonable that this Fund should be financed by taxes with private givers encouraged to organise their own funds to avoid creating expectations that where government falls short, the private sector will come to the rescue.

The COVID-19 crisis will disrupt the economy in a manner that defies the usual tools for fighting recessions: deficit-financed public works through fiscal policy and monetary policy (the Central Bank injecting money into the system) to stimulate economic activity. Disrupting the virus requires that people be not busy and go about the usual economic activity. Besides the financial relief the government is providing, it should also deliver a Sh100 billion Lifeline Fund for individuals and businesses in the form of soft loans that are repayable over time after the crisis, which would ensure that people have food and provisions. A social safety net needs to be created and administered at the ward level in every county, coupled with coordinated collective food banks at the regional and county level.

Discussions on the use of the Fund need to take into account the fact that the measures that the government has announced to alleviate economic hardship do not benefit the majority of the population. Up to 48% of the daily wage earners live below the poverty line, and a further 40% living above the poverty line are at a very high risk of sliding in the case of general long ailment or a pandemic like COVID-19. While the government has announced measures for salaried employees, these form only 20% of the population but are also now faced with the threat of redundancies and layoffs which remain unaddressed by current measures. Within the poor segment of the population, there are special categories including women, persons with disabilities, the elderly, prisoners, refugees, and stateless persons, none of whom is touched by the measures announced by the government.

Nairobi, 3^rd April 2020.

This statement is endorsed by the following individuals:

Professor Yash Ghai, Professor Makau Mutua, Jill Ghai, Davinder Lamba, Maina Kiai, Father Gabriel Dolan, Dr. Roselyn Akombe, Gladwell Otieno, Njonjo Mue, Jerotich Seii,  Abdul Noormohamed, John Githongo, Donald Deya, Alvin Mosioma, Samuel Mohochi, Otsieno Namwaya, Kwamchetsi Makokha, and George Kegoro.

The statement is also supported by the following organizations: [1]

• The Kenya Human Rights Commission.
• The Kenyan Section of the International Commission of Jurists.
• Journalists for Justice.
• Human Rights Watch.

Only under two months ago it was business as usual in Kenya as in most countries across the world. The same cannot be said today with a new strain of corona virus(COVID-19) shaking not only the strongest economies and healthcare systems but ultimately threatening to shut the world down. We are today witnessing unprecedented deaths and ever-rising numbers of new infections. At the time of writing this, the total number of infections globally were more than 700 000 with more than 33 000 people having succumbed to the disease. While the virus started and has caused a humanitarian crisis in China, Italy remains the worst hit with more than 97 000 reported infections and at least 10 000 deaths. Globally, these numbers change rapidly every day and as this happens, governments are stepping up their response mechanisms in a bid to heighten the control of the spread of the virus, manage the existing infections and consequently lessen the burden on the crumbling healthcare systems. Inevitably, a third of the world is now in total lockdown to limit the movement of people and therefore the rapid spread of the virus. Kenya has reported 42 infections as of 29th March 2020, with one of the cases reported to have fully recovered from the infection and one having succumbed. The government of Kenya has further announced the enforcement of a dusk to dawn curfew from Friday 27th March. Both the pandemic and response measures being implemented in the country have created social and economic disruptions that threaten the livelihoods and wellbeing of thousands of people and their communities.

As this happens, the world of work is being profoundly affected by the global virus pandemic. Many businesses, big and small, have taken a beating from the pandemic and have been forced to close down. In Kenya, every sector of the economy is already reeling from the effects of the pandemic: from boda boda riders who can no longer operate normally in the face of COVID-19 to the matatu operators who are not only required to provide hand and surface sanitizers in their vehicles but also drastically reduce the number of passengers in adherence to the one-meter social distance rule, from the duka in your neighbourhood to the local grocery market that now faces imminent closure until the pandemic is contained.

Even the big flower farm that employs hundreds of workers is not spared. Flower growing companies can no longer export flowers to European countries following the lockdowns that have seen the closure of most EU markets where Kenya sells almost 75% of its flowers. The collapse of the Dutch auction has further exacerbated the situation for Kenya’s flower export business. Generally, Kenya’s fresh export business has taken a huge beating following the emergence of COVID-19 with last-minute flight cancellations that have left growers with no choice but to dispose of flowers and other fresh produce worth millions of shillings, daily.

As a result, more than 30 000 temporary workers in the flower sector have already been sent home with 40 000 permanent workers sent on paid leave. We are likely to witness more layoffs and wage cuts if the pandemic is not controlled soon enough. The Kenya Flower Council has expressed fears that should the situation continue, the flower industry faces looming collapse. For a sector that has over the years contributed hugely to the country’s gross domestic product (GDP), a collapse would have far-reaching implications not just on the country’s GDP but on the thousands of people who depend on it either directly or indirectly. Last year alone, the flower industry contributed Kshs. 120 billion to the country’s GDP. It is estimated that more than 100 000 workers are employed directly in the sector and that more than 2 million people depend on the sector indirectly.

This perilous economic situation currently experienced in the flower sector is a replica of many other sectors, both in the private and public spheres. The transport sector has been hard hit with companies like the Kenya Airways (KQ) resorting to huge salary cuts for workers including sending some on compulsory annual leave. The Chief Executive Officer of Kenya Airways recently took an 80 per cent pay cut and imposed a 25%-50% pay cut for other KQ employees depending on their job grade. This scenario replayed itself when President Uhuru Kenyatta announced on 25th March 2020, that he, together with his deputy, would also be taking an 80% pay cut. However, beyond salary cuts, it is important that Kenyans be told where the funds will be channelled and who will be responsible for managing and accounting for them. No doubt, the measures around pay cuts and the many others taken before only go to show how dire the situation is.

Everyone faces difficult moral choices in the face of this pandemic but they are hardest for workers in precarious employment-those on casual, temporary or seasonal contracts, self-employed and unregulated, informal sectors of the economy. Long before the onset of COVID-19, workers engaged in precarious employment were already subjected to serious decent work deficits including but not limited to low wages, perpetual casualization of labour, absence of paid maternity, sick and annual leaves, lack of affordable healthcare, insecure employment and absence of other fringe benefits that come with stable employment contracts. These workers live, in a literal sense, from hand-to-mouth which means a day out of work simply translates to a day without a meal. A majority of them live in informal settlements where basic sanitation is a major challenge. Without underestimating the importance of adherence to the stay-at-home directive, it is not enough to say that the challenges posed by this directive are as ravaging to these workers as the threat of going out there and contracting the virus. People’s economic concerns influence to a great deal their response to risks, including risks posed by the disease. Daily wage earners face a stark choice when asked to stay at home or to self-isolate for more than a couple of days. It must be borne in mind that workers in precarious employment, just like the unemployed, can hardly afford hospital bills for themselves and their families. They may hesitate to seek treatment until they are seriously ill, which eventually exacerbates the strain on the healthcare system and may accelerate the spread of the virus. It is for this reason, particularly, that the decisions and measures taken should have special consideration for these categories of workers, as well as the unemployed and other marginalized groups including the elderly.

We welcome the different measures initiated by the President, Ministry of Health, Ministry of Labour among other agencies that are geared towards support and prevention. However, efforts by the government and business, to prevent the negative impacts of infectious diseases like COVID-19 must consider the economic well-being and security of individuals and families. The COVID-19 outbreak has exposed major implementation deficits as regards social-economic rights provided in the Constitution.

In addition to this, it is critical for the actors involved to remember that even in the wake of Covid19, the law on redundancy is still in force and therefore no worker should be declared redundant without employers following the provisions outlined in Section 40 of the Employment Act. The Act requires, in part, that an employer, in declaring workers redundant, shall, 1) notify the employees one month ahead of the intended action or alternatively, pay one month’s salary in lieu of notice, 2) notify the employee in writing and the labour officer, and where the employee is a member of a trade union, notify the union and the labour officer, 3) consider seniority in time and pay due regard to skill, ability and reliability of the worker, 4) pay off any leave days due to an employee, and 5) pay severance pay to the employee at the rate of not less than fifteen days’ pay for every completed year of service. We call upon employers to act within the law and in good faith and where possible, consider recalling the workers back to employment once the situation is contained.

Similarly, we cannot overstress that there are other existing labour laws that provide protective measures in the event of the illness of a worker. The Regulation of Wages and Conditions of Employment [General] Order, for instance, provides 30 days of sick leave with full pay and 15 days sick leave with half pay. Workers who may contract the virus have to be treated fairly within the ambit of the existing laws. Where possible, we encourage employers to consider the provisions of labour and other related laws to be bare minimum provisions and therefore, where possible, improve and contextualize their individual responses accordingly.

Further, we note that there are many sectors that may require more safety precautions to avoid putting workers in harm’s way. Those in the health and other essential service sectors require enhanced protection from exposure to the virus. It cannot be overemphasized that the obligation to provide workers exposed to wet, injurious and offensive substances with personal protective equipment (PPE) lies with the employer in accordance to Section 101 of the Occupational Safety & Health Act of 2007.

We also take cognizance of the policy response by the Ministry of Labour on the COVID-19 situation and the far-reaching recommendations made which include: suspension of negotiation of Collective Bargaining Agreements (CBAs), freezing wage increments in the next 12 months, sending workers on annual leave and unpaid leave as stop-gap measures, creation of mechanisms that allow workers to work from home, work in shifts and leverage on the use of technology.

Further, the Ministry directed that workers, employers and their representatives engage in discussions on the possible temporary review of salaries and wages. Workers and their employers are asked to embrace social dialogue and embrace Alternative Dispute Resolution (ADR) frameworks and extension of social security to protect workers.

We particularly welcome the proposal to consider a future employment insurance fund to cushion workers who lose their jobs through calamity situations such as the one we are currently facing as a country. This resonates with thinking that is already happening around the world. Just one week ago, more than 500 political figures and academics from around the world called, in an open letter, for an emergency Universal Basic Income (UBI). A UBI has been defined as a guaranteed, no strings attached, recurring payment to every member of the society, sized to meet basic needs. This kind of income would not only cushion the most precarious workers from financial anxiety but it would also alleviate the strain on businesses resulting from such a pandemic as COVID-19.

We also welcome the clarification by the Ministry that unpaid leave will only be taken based on mutual agreement between the employer and employee. Employers must, therefore, desist from unilateral and whimsical decisions to push employees to go on unpaid leave.

However, we consider the blanket suspension of negotiation of all new Collective Bargaining Agreements (CBAs) for a period of 12 months not only ill-informed but also poorly thought out. The assumption by the Ministry that negotiation processes will further strain the situation is misguided considering that CBA processes are not all about wage negotiations. There are important resolutions that could be reached, through the negotiation of CBAs, with regard to mitigating the COVID-19 situation to both employers and employees. Sectors and industries should, therefore, be at liberty to customize their responses to the outbreak. Social dialogue must not be curtailed even as we seek to contain the pandemic.

Further, the call by the Ministry to workers and employers, including their representatives, to engage in discussions on the possible temporary review of salaries and wages in the COVID-19 pandemic phase would be welcome only to the extent that it was reasonable. However, it fails to recognize how grossly underpaid most of the workers are. The current minimum wage for unskilled workers in the agricultural industry, for instance, is Kshs. 6 736 and it is therefore unimaginable that this wage could be scaled down further. On this note, however, we laud President Uhuru Kenyatta for the 100% tax relief for persons earning a gross monthly income of up to Kshs. 24 000. We believe this will go a long way in alleviating some of the anxiety that emanates from taking home a low pay especially in these difficult times.

We recommend that the Ministry of Labour should consider an expansion of the Inua Jamii Cash Transfer Programmes which currently comprise cash transfer programmes for older persons, orphans and vulnerable children and persons with severe disabilities to include workers in precarious employment including those in the informal sector and unemployed persons. Such a programme for workers should be designed to cushion them from financial anxiety in the event of job loss considering that their wages are too low to allow for discretionary expenditure. For the unemployed, it would be a guaranteed monthly safety net which allows them to at least meet their basic needs. Overall, the programme would go a long way in mitigating against the effects of calamities and pandemics such as COVID-19.

Lastly, it is not lost to us that amidst the turmoil and disruption that inevitably results in times of crisis such as the one we currently find ourselves, there is usually a tendency to compromise on human rights. We urge the government and businesses to ensure careful attention to human rights in their management of the COVID-19 crisis. Article 19 (1) (2) of the Constitution declares that “The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings”. We, therefore, urge that respect for human dignity remain at the heart of all responses.

It is not clear how badly the coronavirus will end up affecting Kenya. The human suffering, the social shattering and the economic impacts are already huge and will continue growing. Depending on what eventually happens, the country will look to the rank incompetence and recklessness that characterised the initial reaction as a contributor to whatever damage the virus ends up leaving behind. Having watched the coronavirus ravage Asian and the European countries, Kenya had the forewarning and some lead time, to put in place measures that would have mitigated the crisis. However, Kenya’s political leadership remained unconcerned and detached. Government officials prevaricated in their decision-making, losing time and allowing the virus to take a foothold in the country.

Having initially shown great disinterest in managing responses to the coronavirus crisis, which he had delegated to a cabinet minister, President Uhuru Kenyatta eventually emerged to announce measures that are supposed outline a response to the clinical challenges the virus presents, to address the economic consequences of the crisis and to give the authorities better abilities to manage public to the control measures.

While the government has ensured that the public is informed about its management of the crisis by providing periodic communication, there is space for greater transparency in the management of the crisis. Unsure how long the crisis will last and whether it will always retain control over things, the government is hedging on the side of opacity, and has not provided many opportunities where media can independently report on what is going on.

The President’s announcement that one patient had recovered and several suspected cases had turned out to be negative, implying the existence of robust testing capabilities. Contrary to that impression, however, the capacity to test remains extremely limited and is available only in a small number of public facilities. While there is evidence that the virus may have spread to other parts of Kenya, the testing is currently only available in Nairobi. As a result, and in order to maximise on the limited testing resources, the current practice is to test only persons who show symptoms of infection. This approach will only meet limited success, first, because some infected persons remain asymptomatic and yet they are still able to infect others. Secondly, the very long incubation period for the virus means that readily-available testing is the only basis for an early intervention. A strategy for the prevention of new infections is not possible without capacity.

It is important the government quickly increases its capacity to test for the coronavirus. If tests become widely available, this will enable informed and quick decisions regarding the management of those infected and will save them from infecting others.

The President announced a dusk to dawn curfew aimed at “reducing movement and congregating in large groups.” This measure is presumably in addition to the stay-home directive that the government had already announced and which was already the subject of some public resistance that led to the emergence of different methods of attempted enforcement.

The curfew seems unnecessary as a measure of curbing human behaviour, and a more consensus-based approach would have been sufficient. Further, however desirable the requirement to stay home may be, it comes with significant challenges.

The first challenge implied by these measures is the disruption of the economic activities of daily wage earners. The 2019 census established that 51.1 % of the Kenyan population is economically active on economic activities that give them a daily income. Daily wage earners embody the high poverty levels in Kenya with 48% living below the poverty level, and a further 40% who live above the poverty line are at a very high risk of sliding in the case of general long ailment or a pandemic like Covid 19. The salaried population forms only 20% of the population but is also affected by the coronavirus through the declaration of redundancies and layoffs.

These measures have adversely affected the transport sector where boda boda operators have been banned and, matatus are required to reduce carrying capacity by 40%. Additionally, most companies have instituted pay cuts and layoffs. The informal sector, which supports a majority of the population, faces serious challenges due to the stay-home directive and closure of most markets which means loss of income for most households. The country is, therefore, not only faced with the threat of coronavirus but also that of livelihoods. Without a solution for people who would lose livelihoods as a result of having to comply with stay-home measures, such measures would be impossible to implement and would create socio-economic stress. Food insecurity, fear of evictions and foreclosure as well as the daily need to search for water all make it difficult vulnerable people to stay home.

The President announced measures that provide a response to the effects of the coronavirus on the economy, including tax exemption for the lowest salary earners, a reduction of turnover tax and VAT, and a commitment by the government to pay debts it owes which would increase cash flow, and salary cuts for the President and the cabinet. There were also measures to lower interest rates to make borrowing more affordable.

While the tax relief measures represent a good gesture on the part of the government, they are unlikely to touch the poorest segment of the population.

The people are Kenya’s biggest economic resource.  The people also constitute the sanctity of life that is embodied in the human rights principles. The government must urgently roll out measures to secure the basic social and economic needs of its population before doing economic forecasting and corporate bailouts. These measures should be developed by a broadened taskforce on the coronavirus to include all the ministries led by the Ministries of planning, the national treasury, ministry of agriculture and trade taking lead in developing a comprehensive plan of keeping Kenyans alive during this period of fighting the corona pandemic.

The second challenge affecting stay-home measures is the nature of Kenya’s urban settlement. Of the urban population, nearly 40% live in informal settlements where social distancing would be impossible to implement. Tied to congestion are the limitations that impose the life routines the poorest segment of the population. This population has no fridges or physical space to store food or water, which must be sought on a daily basis. Even if there was money in the pocket, daily movement is necessary to fetch water and to buy food. The only way to keep people at home would be to give them a constant supply of food and water.  Strategies that encourage and facilitate people to relocate as a means of decongesting densely populated neighbourhoods would be needed. Those strategies would also need to come with compensation for relocation costs and the loss of income associated with such relocation.

While the government has correctly emphasized the need to observe high standards of hygiene and sanitation as a key plank in the fight against coronavirus, informal settlements are characterized by lack of clean and flowing water and poor sanitation in addition to congested housing. Access to clean water is limited to 58% of the population while adequate sanitation is limited to 30% of the Kenyan population. The government needs to secure the most vulnerable populations through the provision free and constant water supplies and soap and the general urban population with water and soap in all public areas.

The President's announcement that the Universal Health Coverage kitty is to be appropriated to enable the recruitment of additional health personnel is a welcomed gesture. While their work is commendable, health practitioners are not adequately resourced in terms of numbers, knowledge and capacity building. The government needs to engage additional capacities ranging from doctors, clinicians, nurses, laboratory technicians among others, and to adequately resource them to protect their health from the risks of infection and exhaustion.

With the government declaring three coastal counties as high-risk, in addition to Nairobi the coronavirus now also threatens local communities and may badly strain the existing health facilities in such areas. The national government and county governments must collaboratively set up coronavirus treatment facilities to ensure as many people are able to access medical care and management of coronavirus wherever cases occur. This approach is not possible unless there are testing equipment and facilities at a very basic level.

The expanded task force should address a number of key concerns including, access to food for during the stay-home period, housing particularly for those paying rent and those living in crowded areas; water and sanitation which have been illustrated to be the anchor methods of curbing the spread of coronavirus. The task force also needs to ensure maximum retention of employees on full wages for as long as possible to enable them to provide for themselves and their families and to ensure that farmers producing food for subsistence and commercial uses, including cash crops,  are supported to continue producing through an approach that ensures that all cash-crops produce produced during this period are fully processed in the country and stored properly for export in the future.

Finally, whereas the measures proposed above apply to most of the population, there are vulnerable sections including the elderly, detainees, persons living with HIV and other chronic ailments, expectant and lactating mothers, street families, stateless persons and persons with disability who risk being further marginalized or exposed. All measures taken by the government should address the different needs of this population. The government must guard against unfair discrimination of the vulnerable and marginalized groups in the response against coronavirus.

Kenya Human Rights Commission.

Nairobi, 27^th March 2020.

The Kenya Human Rights Commission, however, notes that a new case of coronavirus was announced today, bringing the total number of cases detected in Kenya to four. The Kenya Human Rights Commission notes, further, that almost all the countries that have had to deal with a large number of coronavirus infections have a much better healthcare system than the one in Kenya. Notwithstanding their better-resourced healthcare systems, those countries are struggling and are currently unable to cope with the pressure that their systems have come under as a result of having to deal with mass infections.

Even before coronavirus, Kenya’s fragile healthcare system is struggling and would surely be put under much more strain if it had to deal with a sudden upsurge of new cases of infection. Prevention remains Kenya’s only reasonable response to the threat of coronavirus.

Elements of a prevention strategy have already been spelt out by the government and include the urge for people to stay home, and to exercise social distancing. The government, however, needs to address barriers that would make it difficult for people to exercise social distancing.  The first is the fact that many families live from hand to mouth and cannot go into self-quarantine or stay home for long periods as the government advises. It is important for the government to quickly mobilise relief food and other humanitarian assistance to such families.

Secondly, because public places in high-density neighbourhoods remain an important breeding ground for the virus, the government needs to organise mass constant disinfection and deep cleaning of the outdoors in those neighbourhoods. Deploying the military or the National Youth Service would unleash a resource that the government could use in this regard.

Thirdly, many of these neighbourhoods also lack running water. Until the situation is controlled the government should maintain constant and reliable supply water and soap and other detergents to these neighbourhoods.

Fourthly, mass transport is where all members of the population will meet. The government must, at its own expense, organise on a daily basis, constant disinfection and deep cleaning of all public service vehicles and to make this process accountable could consider issuing displayable stickers to vehicles that have been sanitised.

Fifth, the government should pay special attention to prisons and other places of detention. People held in such places of detention are at the mercy of public officials in terms of health and safety. Standards of hygiene in such places are often lower than those within the general public and inmates have little control over how to improve these. Infection in these areas would affect not only inmates but also those that work there and their families including members of the entire justice chain. The government must release all prisoners serving less than 6 months and prisons authorities need to prepare fast-track cases that would qualify for parole. People held in remand awaiting trial for misdemeanours should be released unconditionally and the safety of the rest should be reviewed constantly.

Sixth, the government needs to build and equip temporary quarantine structures in readiness of the possibility that these may be needed.

Seventh, the Nairobi County Government needs to commence a programme of daily sanitation of the city. Other big towns and urban areas should do likewise. The government should recruit and deploy special volunteers including trained and unemployed health workers, to beef up the pool of resources to respond to the challenges that might arise.

While, in December 1978, Moi was hailed internationally when he released all the 26 political prisoners jailed during the Kenyatta era, this proved a short-lived reversal of the practice of detention without trial, the jailing of political opponents without the safeguard of due process. By the time the political conditions made it difficult for Moi to practice detention without trial, he had jailed 19 political dissidents. Those that Moi put in detention without trial were often also tortured while in custody. As demonstrated by the case of one of the detainees, Kenneth Matiba, who could have become president of Kenya in his own right, detention without trial was often a crushing, life-changing, experience.

When, in June 1982, Oginga Odinga and George Anyona announced plans to establish a political party, Parliament enacted a constitutional amendment that officially turned Kenya into a one-party state, firmly ending the possibility of lawful political competition. But this was not all. In 1986 and 1988, Parliament enacted constitutional amendments that eliminated security of tenure in office for the Attorney General, the Controller and Auditor-General, and, later, judges of the High Court and Court of Appeal. These amendments removed the few remaining independent checks on the power of the president.

The 1988 elections, during which the secrecy of the ballot was abolished in favour of mlolongo, reinforced the one-party system as well as strengthening Moi’s hand significantly.

After the 1988 elections, KANU began to assimilate bodies that had long performed independent functions. As part of this, Parliament amended the Trade Licensing Act to extend political control over lawyers, whose private practices were now subject to licensing by the Treasury amid recriminations by Kenyan Vice President, Josephat Karanja, that the legal profession was a "nerve centre for imperialists." KANU would go on to officially incorporate Maendeleo ya Wanawake, into its own women's league and also attempted to absorb Central Organisation of Trades Unions. KANU’s all-engulfing capture was then institutionalized with the establishment, in 1988, of the new Ministry for National Guidance and Political Counselling whose mandate included the promotion of KANU and the projection of the nyayo philosophy. An early act by James Njiru, the minister for National Guidance and Political Counselling, was an announcement that newspapers that did not tow the KANU line would be removed from business. Njiru also argued that the newfound queuing system should replace the secret ballot all over Africa.

KANU, now officially protected from competition, grew increasingly intolerant of those who criticized the government. As part of this, Moi's 1989 New Year's speech mandated the ruling party to monitor public places, such as bars, hotels, and restaurants, to identify those who opposed him.  The KANU disciplinary committee, chaired by Okiki Amayo, became the official barometer of loyalty to the party and the president. The political careers of those found not loyal enough suffered ruin. The party’s controversial youth wing morphed into a violent extortion tool, shaking down the population for party membership subscription fees, which now became compulsory for all citizens.

With the space for alternative political expression officially unavailable, such expression went underground, a phenomenon that explains the emergence of Mwakenya and other underground movements. Fearful of surprises, the Moi state increased surveillance against citizens. The use of torture, both as a means of extorting information and controlling people through fear, was a logical consequence of these circumstances. The records of the Kenya Transitional Justice Network indicate that as at June 2019, 179 cases against Moi-era torture have been heard by the High Court which passed judgement in all of them, finding liability against the government. A total amount of Sh. 2.05 billion has been awarded to these claimants. A number of these lawsuits contained multiple claimants, meaning the actual numbers of victims are more than the suits. A majority of the claimants are ordinary people: farmers, university students and lecturers, journalists, hawkers, and teachers. Their crime was that they opposed Moi or were found in possession of publications that were deemed subversive. The list also contains some prominent people: Kenneth Matiba, Edward Oyugi, George Anyona and Mukaru Nganga. Under Moi, torture was universally applied to all opponents irrespective of their station in life.  The fact of the awards, and the large number of those awarded, provide proof that torture was both widespread and systemic in the Moi regime and is something that should form part of how the country remembers him.

In the Moi era, the use of torture and detention without trial was interspersed with prominent political assassinations: Robert Ouko, Masinde Muliro, and Alexander Muge. None of these cases was independently investigated.

Severe restrictions on the freedom of association and assembly that prevailed during the Moi regime made it impossible for independent organisations to register or to operate in Kenya. The history of the Kenya Human Rights Commission (KHRC), founded in 1992 by Kenyan exiles living in the United States where it was initially registered, reflects the difficult political situation that prevailed in Kenya at the time.

Yielding to growing pressure, Moi allowed the resumption of multiparty politics in1991. However, his party staged a fierce rear-guard vilification of the idea of multiparty politics which he characterised as evil. With Moi garnering just 35 per cent of the vote in the first multiparty elections the following year, the now-deceased former president had lost the legitimacy to govern the country, as a result of which he barely managed to cling onto power. The only way he could maintain himself in power was through the use of force. At the same time, the newly-introduced multiparty politics created expectations of an improved political situation.

On the economic front, Kenya had undergone a major drought in 1991/2 coinciding with the political jostling. The political violence in the Rift Valley and Western Kenya had disrupted economic activity while the 1991 Gulf War had generated a sharp rise in fuel prices.

The Goldenberg scandal, the first of many mega-corruption scandals under Moi, was presented as an alternative way of earning much-needed foreign exchange but would prove to have the opposite effect: a drain on the country’s little foreign currency. Goldenberg triggered a massive collapse of financial institutions, which affected access to social and financial services in the country.

The 1992 elections rendered Kenya bundle of contradictions: between a return to multiparty politics, which had promised an end to Moi rule, on the one hand, and the continuing presence of Moi even after the elections; the greater political space inherent in multiparty politics, on the one hand, and attempts by KANU to rule the country as though it was still a one-party state; and, between the promise of economic prosperity, on the one hand, and the utter destitution that the combination of drought, political violence, and global factors had wrought on the population.

This context meant that the period until the next elections, in 1997, was going to be difficult. These five years became one of the most violent periods in Kenyan history, with Moi seeking to re-consolidate power in unaccustomed environment of multiparty politics, having scrapped through the unfamiliar scare of an election. If the 1991/2 violence had been aberrant, the violence in the Rift Valley and at the Coast and at the Coast in 1997 moved the country towards normalising planned violence as a way of doing politics. In this way, the Moi-era political violence presaged the more serious violence of 2007/8.

A period of 18 years elapsed after Moi retired and before he died. In that time, Moi never once revealed his thoughts about his own presidency, particularly in the light of the mounting criticism about his record in office. It is a reflection on the limitations of Kenya’s Truth and Reconciliation process that this did not afford the victims of the Moi violence a chance to find closure through some kind public confrontation with Moi. The effect is that after a long life, maintained by money that he stole from the victims of his violence, and later by their taxes, Moi has exited on his own terms and without really being made to answer for anything that happened under his watch.

The victims of Moi and the KANU regime have never been given justice. These include those who were assassinated, murdered, tortured, detained without trial, exiled, and those whose lives were destroyed. Neither Moi, not his regime, ever faced justice or paid for these crimes. Only a credible truth commission and effective prosecutions can bring justice to the victims. Those responsible, or their estates, must be called to account through lustration, compensation, or stiff prison sentences. A society that forgives — and forgets — such abominations is bound to keep on committing them.

George Kegoro

Executive Director

Nairobi, 7^th February 2020