Public Health Act, the first law the President hinges his lock down dictates, was enacted in 1921. It applies to managing infectious diseases, indicated as smallpox, plague, cholera, measles, spinal meningitis human trypanosomiasis and beri-beri, and others.
This Act allows the Cabinet Secretary for health to formulate measures to contain a contagious disease. However, this measures must effected by way of a notice in the Gazette.
A notice in a gazette is a statutory instrument and must be processes in accordance with Statutory Instrument Act, which has certain prerequisites for making subsidiary legislation. This includes a requirement to conduct regulatory impact assessment and facilitate public consultations.
It may be that the President has no power to issue a fiat on public health. This has been clear since the 1980’s case of Murithi v Republic, where it was stated the President cannot usurp a mandate legally assigned to someone else.
As such, the pronouncements made by President, having not been immediately backed by a valid notice in the Gazette made by the Cabinet Secretary, have dubious legal basis.
The Public Order Act, the second law the measures are hinged, and which makes provision for the maintenance of public order including declaration of curfews, was enacted in 1950 purposely to deal with Mau Mau menace and related insurrection.
The constitutionality of this statute is doubtful, it having not been aligned to the Constitution, especially with Article 24 that provides clear parameters on how a fundamental right and freedom may be limited.
The ONLY power that the President has to make dictates of the kind he made, is the power to declare a state of emergency, the power that is donated as a mandate of the President under Article 132 (4) (d). Visibly, the extent and impact of the lock-down measures amount to a state of emergency. Has the President declared a state of emergency through the back door?
Declarations of state of emergencies are fairly uncommon in democracies. However, illiberal democracies use them as a tool to derogate and override human rights and often to political machismo and underwrite peripheral political agendas.
Covid 19 is a public health emergency and may indeed attain a threshold for a declaration of a state of emergency. However, that must be done in accordance with Article 58 of the Constitution. This Article provides that such declaration shall not be longer than fourteen days, unless the National Assembly resolves to extend the declaration. The Supreme Court has jurisdiction to determine the validity of the declaration by any person aggrieved.
It has to be noted, even when the statehood is endangered, any measure pronounced by the President must have particularity, because human rights cannot be suspended “until further notice” as announced. Further notice? This maybe tantamount to a coup on the bill of rights and enjoyment of fundamental freedoms.
If a state emergency should last only for fourteen days, and that is on very dire situations, how can a mere public pronouncement or a statutory dictate have tenacity to suspend enjoyment of fundamental rights perpetuity or until unnamed discretion is satisfied?
The measures announces are consequently void on the following account:
1. They amount to a declaration of a state of emergency through the back door and not in accordance with Article 58 and declared under Article 132. Hence, even the jurisdiction of the Supreme Court is ousted by this non characterization.
2. The pronouncement is void for lack of particularity and certainty. If a state of emergency runs for 14 days with subsequent renew by the National Assembly, how can executive dictate be unhinged?
3. The President has no powers to make pronouncement on public health. That is the province of CS, and the CS can only make such a declaration through a statutory instrument, which much undergo a regulatory impact assessment on account of anticipated huge impact it has on private sector, public sector and fundamental freedoms.
4. There was zero public participation. The requirement of public participation is a must, for views of the people MUST be heard and considered, for it is a country by the people. The politburo like decisions have no venue in a liberal democracy.
5. As a periphery, the declaration was made and embodied by uncanny insensitivity, unhinged sadism and void of single drop of strategic empathy. There was no housing burning, that the citizens should not have been offered sufficient notice, to arrange their affairs.
In conclusion, The pronouncements cannot pass a constitutionality test, if challenged, and the court would certainly make adverse findings, if petition.
However, the pronouncement may be legally remedied by having it characterized as a state of emergency. This will allow creation of certainty and attendant rights including challenging the validity and involvement of the people through the National Assembly.
The author is a public policy analyst