Tackling a social calamity is not like fighting a war which works best when a leader can use top-down power to order everyone to do what the leader wants —with no need for consultation. In contrast, what is needed for dealing with a social calamity is participatory governance and alert public discussion. – Amartya Sen
The arrival of the novel Coronavirus in Kenya reminded me of Blindness, a novel by Nobel Prize winning Spanish writer José Saramago. In the book, Saramago introduces us to a city where a man suddenly becomes blind as he waits for the traffic lights to become green. Suddenly, this infection spreads so fast across town. Notable is the fact that the government uses excessive, repressive and inept measures in dealing with the epidemic. Soldiers are seen shooting people and in the makeshift quarantine facility, people are denied food, medicine and in turn the populace descends into chaos.
Similarly, when President Uhuru Kenyatta announced measures to contain the spread of Covid-19 in Kenya, which dictates included inter alia the curfew, cessation of movements between towns and social distancing, we saw a return of the Police ‘Force’ (not Service). The police used excessive force against residents of Mombasa as they crossed the Likoni ferry channel, and those found outside after the curfew hours. Justice Weldon Korir described these events to mean that the ‘Police brought the law and order mentality to the fore by visiting violence on the members of the public’.
The unprecedented virus leaves us with several questions including whether we are supposed to talk of human rights when confronted with a pandemic. A friend once told me that it is insane to think of human rights during these times and therefore, we should not even be contemplating how to protect human rights (the main subject of the essay).
The basis of my friend’s argument can be explained in terms of German philosopher and jurist Carl Schmitt’s State of Exception theory, which postulates that during emergencies, we (the citizens, legislature and Executive) should defer to the executive because it is the only arm of government that can balance our liberties with the Pandemic. In summary, during emergencies, the law is silent and the executive is unbound.
The Post World War II world has however rejected such theories because of the atrocities committed by governments in the disguise of dealing with emergencies. For instance, in the disguise of Public health, The Doctor’s trial at Nuremberg revealed that doctors working under the Nazi regime enacted the Euthanasia program so as to eliminate those considered as lesser humans.
This shows that we should be wary of governments invoking the Public health argument so as to normalize a violation of human rights. We are also reminded of history that has shown that political leaders usually resort to ‘real or manufactured crisis so as to justify violation of human rights and/or subvert democratic institutions.
How can we protect human rights?
From Black death, Spanish Flu, H1NI to Ebola, we have learnt a few lessons on how we can protect human rights even in crises. I propose a few measures that we can adopt in order to protect human rights in the time of a pandemic.
I. Judicial Review
Kenya’s 2010 Constitution creates a Judiciary which is supposed to be the constitution’s guardian. In this regard, the Constitution recognizes public interest litigation and grants the High Court the jurisdiction to check the excesses of government. Kenyan citizens and civil society can therefore approach the courts to question disproportionate government policies. A good example is when the Law Society of Kenya questioned the propriety of the curfew orders. Comparatively, the High Court of Malawi has declared the lockdown imposed in the country a violation of the Constitution.
Parliament has three functions; to represent, to make laws and to provide checks and balances. During this pandemic, the oversight role of Parliament should not be on halt. In fact, more vigilance is required, so that any pandemic-related legislation or policy is tabled in Parliament, the house subjects it to serious scrutiny. However, whenever Parliament fails to act robustly, the Constitution grants Kenyans the right to petition the house to consider any matter, a useful provision in protecting human rights today.
III. Freedom of information and expression
The characterization of corona virus as an invisible enemy has seen the adoption of warlike strategies which include the limitation of circulation of information. What we need to remember is that free and fast-moving information saves lives. If the government of China would not have jailed the journalists who raised the first alarm, we may not have been here today. This is because when the media is silenced, government propaganda reigns.
Kenyans can therefore use traditional and social media to hold government to account, just as the #StopPoliceBrutality and #Covid19Millionaires hashtags worked in awareness creation and in holding the government accountable. But beyond this, citizens can further utilize constitutional provisions to demand for relevant information in areas where they encounter opacity from the government.
What should happen when the other legal mechanisms fail? Should Kenyan’s resort to protests? This may seem challenging considering the respiratory and airborne nature of Covid-19. However, there are different ways that they can be made to work. Kenyans can adopt the digital protest option, by signing online petitions. However, if a physical protest becomes inevitable, then maintaining social distance becomes the last line of defense, but only if the police do not resort to the use of tear gas and violence to disperse protestors. An example of a socially-distanced protests is that organized by the Mathare Social Justice Center calling for an end to the police brutality meted against the youth in informal settlements.
V. Petitions to the Chapter 15 commissions
The independent commissions are created to act as the ‘fourth arm’ of government. Kenyans can for instance petition the statutory Kenya National Commission on Human Rights in instances of human rights violations, just as they may reach out to the Commission on Administrative Justice, otherwise known as the Office of the Ombudsman.
Yes, we are living in exhausting, uncertain and overbearing times, but we can manage the crisis without resorting to massive human rights derogations. There is a duty on the state just as there is a duty on every Kenyan to protect and preserve human rights.