Through this report, This monitoring exercise between April and July 2020 so far, including media reports later in August to October, indicate that both the COVID-19 pandemic and response measures have created social and economic disruptions that threaten the livelihoods and human rights of thousands of vulnerable populations and the general public. This report is, therefore, a compilation of the KHRC grassroots partners’ findings, which are on the human rights impact of COVID-19 and the respective responses, from 27 of the 47 Counties in Kenya.
Our monitoring was based on the national and international human rights obligations of the government and other actors as enshrined in the Constitution of Kenya and other international legal instruments. The comprehensive statement issued by the African Commission on Human and Peoples’ Rights (ACPHR, or the Banjul Charter) on a human rights-centred approach to the COVID-19 and those by the different UN mechanisms remain instrumental.
Within the monitoring frame, the KHRC had four (4) of topical issues for human rights investigation. These were:
- Levels of Preparedness and Nature of Responses to the Pandemic at all levels;
- Excesses or responses by the State Security and Administrative Agencies;
- Inclusion and Accountability in the Key Decisions and Facilities related to COVID-19;
- Any other emerging human rights and governance issues.
On the levels of preparedness and nature of responses to the pandemic at all levels, the KHRC found out that it remains wanting to owe to the lack of political and technical capacities by both the national and County governments to make the requisite decisions towards the management, suppression and containment of the virus and its impacts to the vulnerable populations.
Moreover, different State and non-State actors (including the citizenry, civic and corporate actors) did not have the necessary protection and support systems against the novel, contagious virus. Thus infections continued unabated while responses led to many violations and exposures to the public, and more so the most vulnerable groups, as documented below.
The response could be summarized as ‘muddling through’. For example, the measures were taken around contact tracing, isolation and quarantine which were initially punitive have shifted with the government now embracing home-based care.
With regard to the response of State security and administration agencies, there is a need for an independent audit of the conduct of state agencies, particularly the security apparatus and how they enforced COVID-19 related regulations. Those found to have taken advantage of their positions to violate rights must be held accountable.
In this case, the Independent Policing Oversight Authority (IPOA), the Directorate of Criminal Investigations (DCI) and the Ethics and Anti-Corruption Commission (EACC) should commence investigations into the alleged acts of killings and violence; laxity in the provision of security, bribery and extortion. Finally, there is a dire need for thorough training and exposure of our security agencies on accountable and human- rights-centred policing, crowd control and emergency response mechanisms and strict enforcement of that code of conduct.
On the matter of inclusion and accountability in making key decisions, the KHRC found out that most of the counties have established a COVID-19 coordination team. However, most of these teams have no representation from civil society and the public. What this means is that both the civil society and the public are not involved in the government’s decision making process on issues related to COVID-19. As a result of non-inclusion, the civil society and the public has been unable to access relevant information related to the pandemic and thus unable to effectively hold the respective County government to account.
In most Counties, members of the public have not been involved in decision making by both the national and county governments. Actually, until now, the people are not aware of the total amount of funds received by their County governments towards the fight against COVID-19, neither do they know how the received funds have been utilized.
With special mention, under the prevention, control and suppression of COVID-19, we notice the use of any person without any distinction to nationality or lack of it. Whereas other laws on health also don’t make such distinction, administrative practice does as most people are required to identify themselves before accessing health services. The stateless and the indigent persons suffered enormously.
The COVID-19 pandemic has, therefore, exacerbated the inequalities the poor and marginalised face in accessing justice. From KHRC’s violations portal, 70% of the claimants who reported incidences of police brutality, evictions and sexual and gender-based violence to state agencies indicated that their matters had not been attended to and/or resolved thus the reason they approached KHRC.
Finally, on the matter of other emerging issues, this report documents how the COVID-19 pandemic has forced most businesses and companies to shut down. Major organizations and businesses have had to adjust to working remotely with a majority of others cutting down their expenses through retrenchment of workers. The hospitality industry has been one of the most affected with most businesses forced to close down completely. Another sector that has been hugely affected is the informal sector which includes casual labourers.
Further, the excessive and persistent worry about the pandemic has caused stress which results in uncertainties such as fear of contagion, job security and health. This has led to depression and in some cases suicide.
Moreover, COVID-19 pandemic forced governments and individuals to take different measures to reduce the spread of the virus. One such measure was closing down schools and other institutions of learning. However, this has introduced another unique pandemic. According to some public, media and government sources, during the months of lockdown, over 100, 000 Kenyan teenage girls became pregnant.
Beginning latter matter of emerging issues, on teen pregnancies, the government should prioritize alternative options such as part-time classes to encourage young parents to continue with their education. There should be more social and economic support to the young parents and awareness on sex education and the necessary protection measures. It's also a time to reconsider the existing sexual and reproductive health policies and program for their responsiveness.
Further, the government should prioritize the most affected sectors such as tourism and casual sectors by introducing a stimulus programme. Innovation should be nurtured and the government should prioritize engaging local vendors and labor for all projects before importing it, this helps create employment by tapping the local talent.
Also, the government should implement recommendations by the Mental Health Taskforce by declaring mental health a National Emergency. There should be measures to address the impacts of COVID-19 and the mental health concerns of the different populations at all levels in society. State and non-state actors need to provide adequate psycho-social supports to the different categories of populations impacted by the virus and responses across the board.
On the matter of inclusion and accountability in making key decisions, NCAJ should put in place mechanisms to ensure affordable and effective access to justice for the poor and the general public and continuous protection of the staff involved in the criminal justice chain at this time of the pandemic. The National Criminal Justice Reforms Committee of NCAJ needs to expedite the formulation, adoption and implementation of the expected legal, policy and administration changes with the criminal justice system in Kenya.
Further, still the government should immediately cease all evictions aimed at different communities during the COVID-19 period. Also, develop mechanisms for supporting and compensating the communities impacted by all displacements and evictions (from the historical to the currents ones). Moreover, there is a need to urgently initiate public and policy conversations to create more understanding of the phenomenon of displacements, the impacts of COVID-19 and the necessary governance frameworks. This should be accompanied by ensuring all the policies and resources dedicated to COVID-19 responses address the pertinent needs and protects the rights of IDPs among other vulnerable communities.
Further, on accountability, there is a need to create a more effective and representative COVID-19 Emergency Response Fund/ Agency, operating both at the national and county levels. Further, there is an urgent necessity to also foster human rights-based response frameworks. Such would ensure that all actions by the state and non-state actors will protect and promote the rights of the people involved and negatively impacted.
There is the necessity to continuously enforce and provide adequate hygiene and safety essentials such as masks and hand sanitizers to all vulnerable populations at no cost, especially now that billions of Ksh have been granted to the GoK, in the wake of the phased opening of schools at all levels.
In the work front, the government and other actors should ensure companies adhere to the existing laws and that COVID-19 response mechanisms do not push workers further into further destitution. Further, businesses must ensure the health and safety of workers, especially those with significant workplace intervention such as those in the spray department. Finally, employers must ensure access to healthcare and protective equipment for their employees in line with Section 101 (1) of the Occupational Safety and Health Act.
Finally, the government and other actors should put measures in place to measures to offer the requisite support and protection to the old people, persons with disabilities, the poor, children and women whose exposure to violence among other injustices has been increased in the context of COVID-19. Moreover, there should be additional measures to ensure their inclusion.
10th December 2020.
Moses Gowi: +254782 352527, [email protected]