COVID-19 is now a full-blown global health pandemic, and governments all over the world have put in place measures to prevent and control the spread of the virus. In Kenya, the government has progressively introduced a series of new guidelines deriving from various legislation including the Constitution of Kenya, the Public Health Act (PHA) Cap 242 Laws of Kenya, the Health Act No. 21 of 2017 and the Public Order Act Cap 50 Laws of Kenya.
In this article, we focus upon the criminal offences arising from these laws and new guidelines. We also examine the enforcement measures that various other countries are taking in comparison.
COVID-19 prevention and control measures in Kenya
Here we highlight the laws behind the key measures that attract criminal penalties.
a) Control measures for infected persons
The PHA defines an "infectious disease" as any disease which can be communicated directly or indirectly by any person suffering therefrom to any other person, and provides guidelines for the prevention and suppression of such diseases. The Ministry of Health has classified COVID-19 as a highly infectious respiratory disease, therefore any infected person who exposes himself to the public without taking proper precaution is guilty of an offence under the PHA. Upon conviction, this will lead to either a fine of up to KSh30,000, imprisonment for up to three years, or both. The recent arrests of the Kilifi Deputy Governor Gideon Saburi and the catholic priest Richard Oduor are cases in point.
b) Preventive measures for uninfected persons
Preventive measures that attract a criminal penalty if broken include the nationwide curfew, cessation of movement into or out of certain counties, public transportation measures and individual use of protective masks when in public.
The Public Order Act allows for the imposition of a curfew within a part or all of Kenya by the Cabinet Secretary of the Ministry of Interior (CS Interior). The 5.00am to 7.00pm curfew to be observed in Kenya was formalised through Legal Notice 36 of 2020. The penalty for failure to observe the curfew includes either a fine of up to KSh10,000, imprisonment for up to three months, or both.
Restriction of movement into and out of Nairobi Metropolitan Area, Kilifi, Kwale and Mombasa Counties
Rule 3 of the Public Health Rules 2020 empowers the CS Health to declare an area as infected and restrict movement into and out of the restricted areas. In exercise of such powers, the CS Health published the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) for Nairobi Metropolitan Area, Kilifi County, Mombasa County and Kwale County on 6 April 2020. The directive was implemented in Nairobi Metropolitan Area on 6 April 2020 and for the other counties as from 8 April 2020. The National Police Service is tasked with the enforcement of the same.
Use of masks in public and private transport
Rule 5 of the Public Health Rules 2020 now makes it illegal for both public and private transport vehicles to carry more than 50% of their licensed capacity and for motorcycles and bicycles to carry more than one passenger. In addition, it is now mandatory for all public and private transport operators to wear proper masks.
Restrictions in public places
Rule 6 of the Public Health Rules 2020 provides for the maintenance of physical distancing of no less than one metre from the next person, and use of a proper face mask that must cover the person’s mouth and nose. In addition, organisations and business entities have to provide a handwashing station with soap and water or an approved alcohol-based sanitiser, enforce physical distancing within their premises or business location, and regularly sanitise their premises or business location.
The Public Health Rules 2020 impose a penalty of either a fine of up to KSh20,000, imprisonment for a period of up to six months, or both, for contravening the measures set out above.
Challenge by the Law Society of Kenya
The Law Society of Kenya has filed a petition challenging certain measures and penalties imposed by the Public Health Rules 2020, such as the requirement to use masks in transportation. The authorities will continue enforcing the measures put in place until final determination of the petition.
Enforcement measures in other nations
To curb the spread of COVID-19, the UK and Australia have put in place similar control and preventive measures. These measures interfere with human and civil rights only to the extent necessary and proportionate.
Movement of people and goods has been restricted. For instance, in the UK any public gathering of more than two people is illegal. In Australia, the Health Minister is empowered to direct an individual to remain isolated and wear protective equipment i.e. face mask.
Further, the police in these nations have been given extensive powers to enforce the regulations put in place for the control of COVID-19. The objective of enforcement by the police is to maintain a close link to health protection. The regulations create a criminal offence for breaching or obstructing someone from carrying out a function under the regulations and, similar to Kenya, impose fines or imprisonment for any breaches.
The Constitution of Kenya provides all accused persons with the right not to be convicted for an act or omission that was not an offence in Kenya or under international law at the time. This, along with the Public Order Act, the PHA and the Public Health Rules 2020 provide the necessary legal framework to bolster the extraordinary measures which the government finds itself having to take in reaction to the developing pandemic. This legal framework ensures that the principle of legality is observed and that the authorities do not arbitrarily arrest Kenyans for offences which might not actually be crimes.