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

The victims of the Solai Dam tragedy are aggrieved by the decision of  Hon Magistrate K. Bidali in Naivasha Law Court to set free Mr Perry Mansukush and 9^[1] Others on grounds that:

1. The victims were not given an opportunity to present their case despite having requested the court.
2. The matter has not been heard and conclusively determined.

Following the Solai Dam tragedy on Wednesday 9^th May 2018 which caused the loss of lives, massive destruction of property and unprecedented displacement of people. The owner of the Dam Mr Perry Mansukush Kansangara (popularly known as Patel) and other government officials^[2] were charged in the Naivasha Court on 5th July 2018 with the offense of manslaughter and neglect of official duty.

The matter had been set down for hearing but the DPP applied for an adjournment because there was a proposal in place and discussion on a plea bargaining which had been presented in court. Similarly the Kenya Human Rights Commission had filed an application on 4^th November 2019 to represent the Victims under the Victims Protection Act. The Naivasha Court was supposed to give a ruling on the application on 3^rd February 2020 before the matter could proceed for hearing. Similarly, there was an application by Mr Onyango from the firm of McKevron Advocates which was also to be determined by the court on the same day.

Surprisingly when the victims attended court on 3rd February 2020, the Hon Magistrate Mr K. Bidali issued a Ruling setting free Mr Perry Mansukush and 9 others under section 210 of the Criminal Procedure Code on account of what he termed as delays by the prosecution. Section 210 of the Criminal Procedure Code provides that an accused person can be acquitted where there is no case to answer. In the instant case, the hearing had not started and the victims had not presented their witnesses. Thus the ground given by the magistrate was illegal, illogical, grossly misconstrued and calculated to deny the victims their right to access justice guaranteed under section 48 of the Constitution.

The victims are aggrieved by this ruling and find that there has been a blatant miscourage of justice because they have not been allowed and given adequate opportunity to present their case yet this matter touches on the right and interests of a whole community that has been adversely affected by the tragedy that occurred on Wednesday 9^th May 2018.

The victims position is that the Constitution provides for the right to a fair hearing. This right requires that in administering justice fairness is seen in both the procedure and outcome. To ensure fairness in procedure and outcome, the deciding authority must give the people before him the opportunity to prepare and present evidence and to respond to arguments presented before reaching a conclusion. This was not the case in this matter.

As such, the victims through the Kenya Human Rights Commission will:

1. File an application for Revision of the decision to set Mr Perry Mansukush and 9^[3] Others free in the High Court.
2. The Victims shall also lodge a complaint against the Magistrate before the Judicial Service Commission.

Signed By:                                                                             Signed By

Stephen Kuria                                                                       George Kegoro

Representative of the Victims                                             Kenya Human Rights Commission

Signed By:                                                                             Signed By:

Robert Njenga                                                                       Joseph Omondi

Freedom of Information Network                                     MidRift HURINET

Civil society organizations working on matters of citizenship, legal identity, human rights, and data protection came together to file four constitutional petitions contesting the roll out of Huduma Namba.

The case challenged the constitutionality of NIIMS based on the use of a miscellaneous amendments bill to pass substantive amendments, the lack of public participation in the process, inadequate frameworks to guarantee data privacy and protection, and the risk the system could further entrench discrimination and exclusion of marginalized groups in Kenya. The case affects the rights of all people in Kenya.

In April 2019, the High Court issued interim orders that put important restrictions on the government while they carried out the Huduma Namba enrollment exercise. Until the full case concluded, the government was restricted from making Huduma Namba registration mandatory, linking Huduma Namba to public services, collecting DNA or GPS, setting any deadline for registration, or sharing the data collected with third parties.

Yesterday, on 30th January 2020, the High Court gave a judgement stopping the implementation of NIIMS due to several key gaps.

1. The court finds the legal framework on data privacy is "inadequate and totally wanting” as a result of a rushed process. The court noted the law is unclear and ambiguous because it lacks an operational framework for NIIMS. Information collected under NIIMS falls under the category of sensitive personal data, which would pose serious risk in case of loss or unauthorized access.
2. The courts found NIIMS has a high risk of excluding an entire segment of the Kenyan population. Catastrophic exclusion from the system and services could affect people lacking documentation, people facing hurdles with biometrics, and many others.
3. The court declared that the amendments allowing collection DNA and GPS are unconstitutional and struck them off due to their intrusive and unnecessary nature.

Implementation of NIIMS is halted until the time that a comprehensive regulatory framework is in place to address both data privacy and the exclusionary nature of the system.

We will monitor these orders. We cannot allow the Ministry of Interior to operate outside of the Constitution of Kenya and violate the people’s rights in the pursuit of the “national interest.”

We will monitor adherence to this judgement and continue our vigilance.

We congratulate the people of Kenya for standing up against blatant intimidation and disregard for the rule of law and the High Court for standing up to protect the rights of the people.

Issued by

1. Nubian Rights Forum
2. Kenya Human Rights Commission
3. Law Society of Kenya
4. InformAction
5. Haki Centre
6. Muslims for Human Rights (MUHURI)
7. Article 19
8. Inuka Trust
9. Haki na Sheria Initiative

I come from Kenya. The cases from my country are a large part of the reason why there is currently a discussion about the reform of the International Criminal Court. The challenging journey that those cases travelled before the court provides a microcosm of the issues the court faces and which now need to be addressed.

Problems started when Kenya’s political leadership embarked on a campaign of vilification against the court.  Initially domestic, that campaign would spread into the region in Africa before it went global. The campaign succeeded in questioning the legitimacy of the ICC, first in Kenya, and around Africa. With the legitimacy of the Court now in doubt, it became increasingly difficult for ordinary officials in the country to play their role in providing cooperation with the court. The vilification also turned public opinion against the court and had a chilling effect on communities, victims and other actors outside the state whose interaction with the court was now stigmatised.

With time, these attacks established a hostile national narrative against the court. The narrative explained and justified the tampering with, and attacks on witnesses. Since witnesses were now portrayed as traitors, what would be wrong if these were killed, as ended up happening?

While it was within the power of the States Parties to take a stand against the political backlash, they were mostly passive while actively participated in attacking the court.  Eventually, beginning with a session in this very hall, this Assembly was invited into long debates to change the text and practices under the Rome Statute as an act of appeasement. Those debates communicated weakness and sent a message that the States Parties were not in a position to provide the Court with the political protection needed for its work. If they encountered political difficulties in their work, judges were on their own.

In many domestic jurisdictions, actions that lower public confidence in the courts are regarded as contempt and are punished by the courts. While the Statute contains similar procedures, responses to the mobilisation of whole nations and regions against the court are surely outside the judicial function and lie in the political realms of the Rome Statute.

A lesson to be taken forward in any review of the court is the recognition that political attacks on the ICC are not without serious consequences for communities, victims, and witnesses. Going forward, it must be the business of this Assembly, as the political authority under the Rome Statute, to shield the court from political backlash. This is a role that the Assembly needs to undertake proactively.

In closing, the Kenyan cases embodied the contribution of civil society in the arena of international justice. With the ICC confronted with the challenge of physical and cultural distance with the situation on the ground, civil society played a major role in connecting the court with the communities it needed to serve. Civil society also led in countering the political vilification of the Court, in validating the decision of communities to cooperate with the court, and in mobilising interaction with the court/

The practices of the ICC have evolved into two tracks: the first track is one of reflection and planning which takes place here at The Hague and in New York. The second is the track of implementation, which takes place in the field, mostly in Africa, which forms majority of the situations before the court. There is often no deliberate effort to link the two tracks and that is one of the weaknesses of the ICC. The fear now is that even the proposed review will fall into and replicate the very weaknesses that necessitate the review in the first place.

As civil society actors in the field, we represent some of the lived realities of the ICC. However challenging it may be do so, voices from the field must be incorporated in the review.

George Kegoro

The Hague, 4^th December 2019

The Police Reforms Working Group Kenya (PRWG-K) brings together over 25 local, National and International Human Rights Organizations that seek to advocate for reforms within the National Police Service. The Police Reforms Working Group-Kenya is premised on four pillars namely; Quality Service; Accountability; Public Participation and Police Welfare.

The Police Reforms Working Group Kenya (PRWG-K) recognizes the role that the Judiciary plays in the criminal justice system in Kenya. The Judiciary, under the Constitution of Kenya 2010 is established as an independent organ of the State. Article 159 proclaims that Judicial Authority is derived from the people.

Particularly since the promulgation of the Constitution of Kenya 2010, the Judiciary has distinguished itself in taking up the challenge of enhancing access to justice, transparency and accountability in Kenya in line with Article 48 of the Constitution.

We wish to draw your attention to the National Treasury Circular No. 14A dated 24th September 2019 that was addressed to all cabinet secretaries and accounting officers to the effect that the budgets for government ministries, departments and agencies have received drastic cuts.

The circular, among other things purported to slash 50% of the Judiciary’s budget. Incidentally, the circular cited revenue shortfalls and the need to raise funds for the Big 4 Agenda as the justification for the budget cuts.

The PRWG believes that the Judiciary is an independent and co-equal arm of government, alongside the Parliament and the Executive. The Judiciary is neither a government ministry, department or agency and ought not to have been addressed, or even affected by the circular to ministries, departments or agencies.

Whether or not, and how the government funds its flagship Big Four Agenda, though important, is a matter of executive priority within its own departments and should not affect the budget of another organ/arm of government.

On the contrary, adequate housing, manufacturing, comprehensive healthcare and food security are dependent on low crime rates, human rights and a conducive business environment.  These require a functioning Judiciary for the arbitration and settlement of disputes and dispensation of criminal justice in a timely and consistent manner.

Indeed, Article 173 of the Constitution of Kenya has provided for the establishment of an independent Judiciary Fund meant to provide the Judiciary with financial security. This is yet to be realised.

As a result of the budget cuts, the Judiciary has since announced that dozens of courts around the country will be suspended, which will affect more than 15000 cases. We believe that this will greatly affect access to justice by the people of Kenya including the very marginalised in society contrary to Article 48 of the Constitution. It will also cripple the fight against corruption despite the investments in the Directorate of Criminal Investigations (DCI), the Office of the Director of Public Prosecutions (ODPP) and police reforms.

The PRWG also notes that the President has declined to gazette the names of 41 Judges forwarded to him by the Judicial Service Commission, citing concerns about their character. We would like to remind the Executive arm of the Government that the Constitution of Kenya transferred the powers to select and appoint away from the President in order to inculcate judicial independence. The role of the President in Judicial appointments is merely ceremonial. This position has been canvassed and confirmed by the Courts.

The PRWG believes that the budget cuts and the refusal to gazette Judges is a dangerous development that seeks to, in effect, subject the Judiciary to domination by the Executive.

We, therefore, recommend that: -

1. Treasury immediately recalls/withdraw the circular that purported to effect the budget cuts to the Judiciary.
2. Treasury immediately disburses all the monies to the Judiciary as per the Annual Estimates passed by the National Assembly.
3. Executive acknowledges that the Judiciary is an independent arm of government and ought not to have been addressed by a circular to government ministries, departments and agencies.
4. National Assembly and Executive operationalise the Judiciary Fund as required by the Constitution - to ensure financial and functional independence.
5. Names of the 41 Judges forwarded to the President be immediately gazetted.

We, the undersigned Police Reforms Working Group:

1. Kenya Human Rights Commission
2. Defenders Coalition
3. Independent Medical Legal Unit
4. Federation of Women Lawyers Kenya
5. Kenya National Commission on Human Rights
6. International Commission of Jurists –Kenyan Section
7. International Justice Mission
8. Amnesty International Kenya
9. Usalama Reforms Forum
10. International Centre for Transitional Justice
11. Legal Resources Foundation
12. Rights Promotion and Protection Centre.
13. Catholic Justice and Peace Commission
14. Coalition on Violence against Women.
15. Centre for Minority Rights.
16. Constitution and Reform Education Consortium
17. Kenyans for Peace, Truth and Justice.
18. Peace Brigade International
19. Chemi Chemi ya Ukweli
20. KATIBA Institute
21. Shield for Justice
22. Wangu Kanja Foundation
23. Women Empowerment Link
24. Transparency International - Kenya
25. Kariobangi Paralegal Network
26. HAKI Africa
27. Africa Centre for Open Governance (AfriCOG)