The Kenya Human Rights Commission – KHRC commends the Kenyan government for finally providing an appropriate response to the threat that a coronavirus infection presents to the country. We support the measures announced by President Uhuru Kenyatta restricting the entry of non-nationals into Kenya, not allowing flights from corona-stricken countries to land in Kenya and also the measures regarding the restriction of public gatherings. We also commend measures to close schools and to encourage as many forms of social distancing as possible.
We note, however, that the measures announced by the Kenya government fall in the realm of the declaration of a state of emergency which the Constitution empowers the President to make.
Under the Constitution, the President may declare a state of emergency when Kenya “is threatened by war, invasion, general insurrection disorder. a natural disaster or other public emergency” and declaration is necessary to meet the circumstances for which the emergency is declared.
A state of emergency lasts 14 days but the National Assembly can resolve to extend the declaration for a period of up to two months at a time.
Without calling it so, President Kenyatta has, in effect, invoked the emergency powers under the Constitution. In the view of the Kenya Human Rights Commission, a number of factors make it
necessary for the President to formally declare a state of emergency as provided for under the
Constitution.
First, after an indifferent initial response to coronavirus. during which precious opportunity may
have been lost, a formal declaration of a state of emergency would provide much-needed political signalling about the seriousness of the threat that coronavirus poses to the country and would mobilise the correct levels of public support for any responses that the government proposes.
Second, such a declaration would help overcome the existing political divisions, potentially a significant hindrance to a coherent response, allowing the country to pull as one in dealing with the threat of coronavirus.
Thirdly, declaring a state of emergency would provide popular legitimacy to any responses the government makes by involving the National Assembly as the elected organ of the people, and would formally vest in the Assembly an oversight role to any responses.
Fourth, such a declaration would establish a mechanism for accountability on what the government intends to do in response lo the coronavirus. Already, the government has declared that there should be no public gatherings, an abrogation of rights. If the crisis deepens, more intrusive measures may become necessary. White the Kenya Human Rights Commission, in principle, supports the restrictions on rights that the government has already spelt out, the need to avoid future contestations about the reasonableness of any measures that the government may propose requires that those measures are seen as coming from a place certainty and accountability.
Fifth, declaring a state of emergency will stimulate a prevention-based response to coronavirus,
as opposed to a cure-based approach. All the crisis-level situations of coronavirus have so far
affected countries that have far more economic prosperity than Kenya. However, each of those
countries is struggling to cope and each is still overwhelmed by what it has to deal with. With far
fewer resources, including the disadvantage as the driest country in Eastern Africa while water is
needed to deal with coronavirus, Kenya’s best chances of surviving lie in prevention rather than
cure. Mobilising a response that prevents infection from reaching crisis-levels is the only
reasonable option that Kenya has for managing coronavirus.
With their vast resources, coronavirus has still claimed large numbers of the populations in
China, Italy and the United States, Declaring a state of emergency would greatly strengthen the
hand of President Kenyatta as he leads a deeply divided country against what may end up
becoming its greatest threat ever. It would signal an end to the primordial political competition,
and refocus public attention where it is greatly needed and would greatly improve public
confidence, and support for, Kenya’s response to the threat by communicating that There exists
the correct level of official awareness about what needs to be done.
