Human Rights that Kenyans should expect limitation amid COVID19 crisis

In this illustration provided by the Centers for Disease Control and Prevention (CDC) in January 2020 shows the 2019 Novel Coronavirus (2019-nCoV).

The Corona Virus-2019 pandemic has shown that indeed nothing is impossible in the modern civilization. The modern civilization is majorly characterized by a new era directed with science and new inventions such as technology being the cog and wheel to most successful enterprises. 

The concept of the Bill of Rights was adopted worldwide in 1948 vide the Universal Declaration of Human Rights (UDHR). According to the United Nations, the UDHR was proclaimed by the United Nations General Assembly (UNGA) and it set out a common standard of achievements for all peoples and all nations. For the first time in the modern civilization, fundamental human rights were acknowledged. All member states of the UN were urged to secure, effectively recognize and observe these rights as of great importance among the peoples of territories under their jurisdiction.

The Bill of Rights are also recognized by the Kenyan Constitution as an integral part of Kenya’s democratic state. 

According to the European Convention on Human Rights: there are three categories of human rights; absolute rights, qualified rights and limited rights. 

The first category of absolute rights state that the government does not have a right to interfere with or limit the so called absolute rights. The Kenyan constitution outlines FOUR rights as absolute- the freedom from torture and cruel, inhuman or degrading treatment; the freedom from slavery or servitude; the right to a fair trial; and the right to an order of habeas corpus. 

In the wake of the COVID-19 Kenya’s head of Judiciary and Chief Justice Hon David Maraga suspended all appeals, hearings and mentions in criminal and civil cases. In as much as this is a violation of the right to a fair trial. Nonetheless, framers of the Kenyan Constitution had likely envisioned a global pandemic when they were drafting the laws thereby limiting this right by inserting Article 50(2)(e) that stipulates the right to a fair trial may be delayed if any reasonable and valid reason is in existence.

Moreover, it is uncertain if the government has been capable to achieve the progressive realization to the rights guaranteed under Article 43 of the Constitution. Amid a looming lock-down, the Kenyan government will be tested if indeed it has achieved the highest attainable standard of health which includes the right to health care services. The Kenyan government will further be tested as to whether it can give Kenyans a reasonable standard of sanitation that will slow down the spread of COVID19. Already, the Cabinet Secretary of Health Mutahi Kagwe has stated in a press conference that he had liased with Water CS Sicily Kariuki in order to ensure that Kenyans have regular access to water in public spaces as well as in private homes with pending water bills.

According to Article 24 of the Constitution, a right shall only be limited by the government only through law and only to the extent that such a limitation is reasonable and justifiable in an open and democratic society. This aforementioned statement can be interpreted as the meaning of qualified rights. Qualified rights can be state interfered. Therefore, in the midst of the Corona Virus, Kenyan citizens should expect the following qualified rights to be restricted-

a) Subject to Article 58 and in contrary with Article 39 of the Constitution, A state of emergency may be declared due to the global Corona Virus pandemic thus depriving citizens freedom arbitrarily. This state of emergency may be in form of a lock-down [as witnessed in China and several European countries] that will deprive persons in Kenya the right to freedom of movement and would also include restrictions from leaving or entering Kenya and moving anywhere within Kenya.

b) Article 36 of the Constitution states that every person has the right to freedom of association. This right includes the right to join or participate in activities of an association of any kind. The Kenyan government has already banned sporting events, open-air religious meetings and ‘all events of a huge public nature. This has also been effected by some county governments such as Kajiado and Mombasa who have banned any gathering in night clubs and beer outlets. Furthermore, this ban has also limited the freedom of religion as witnessed in the recent suspension of Sunday church services by the PCEA , CITAM and Anglican Church of Kenya. Lastly, the restriction of freedom of association has also led to the adjournment of the Kenyan parliament.

c) The COVID19 pandemic has seen students right to education as stipulated under Article 43(1)(f). Learning activities have been suspended in all primary and secondary schools with Universities given until Friday March 20,2020 to shut down.

Finally, According to European Convention on Human Rights, limited rights govern the relationship between individuals. A person should not exercise his rights in such a way that it does not prejudice the rights and fundamental freedom of others. Recently in March 17,2020 the ceremonial Nairobi Governor, Mike Sonko directed the Acting Nairobi county Secretary Justus Kathenge to facilitate the implementation of a directive that has suspended all arrests by the Nairobi County Government inspectorate and Enforcement officers until further notice in order to avert the spread of the corona virus pandemic.

“Furthermore, many suspects are held in county vehicles for long periods of time before arraignment, and that environment violates WHO guidelines on exposure to Covid-19,” said the embattled governor.

The UDHR had envisioned a situation whereby human beings would fully enjoy their inviolable human right, however the global corona virus pandemic has brought a discourse as to whether human rights are really necessary and if indeed they belong to the people or are granted to by the state.

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