The Law Society of Kenya has petitioned the High court of Kenya to block Public Health COVID 19 Restriction of Movement of Persons and Related Measures) Rules, 2020
The suit pits the LSK versus the Attorney General and the Cabinet Secretary For Health, Mutahi Kagwe whereas The Kenya National Commission for Human Rights and Speaker of the National Assembly are also listed as Interested parties.
In the matter filed by Counsel Omwanza Ombati under certificate of urgency, the society argues the legality of the rules on several grounds
(i) that the rules published on April 6, 2020 are now void as they are yet to be tabled before the National Assembly as the 7 days period has already lapsed and whereas Section 11(1) of the Statutory Instruments Act obligates every Cabinet Secretary responsible for a regulation-making authority to, within 7 sitting days after the publication of the statutory instrument, ensure that a copy is transmitted to the responsible clerk before tabling before parliament. Furthermore, Section 11 (4) of the Statutory Instruments Act provides that, in a Cabinet Secretary’s default of section 11 (1) of the Statutory Instruments Act, the statutory instrument issued by the CS ceases to have effect immediately after the last day for it to be so laid before the House.
(ii) That their is no Gazette Notice published on April 6,2020 at the eklr website therefore the CS for health is in breach of the rules that require easy accessibility of a regulation or law in an intelligible manner that is accessible to the general public
(iii) The regulations are unconstitutional because not only are they discriminatory against the poor who cannot afford face masks but they were never subjected to any form of public participation as required by the Constitution of Kenya.
Moreover, the LSK asks the rules to be voided also on the basis that they introduce a criminal penalty contrary to the Statutory Instruments Act if not by the fact that they are vague and were never approved by the parliament contrary to the Statutory Instruments Act.
That society further argues that without timely intervention from the court by granting injunctive reliefs of conservatory nature, the petition and application will be useless to the detriment of the general public whereby they stand to be arrested, prosecuted and convicted for vague and unconstitutional laws. Consequently, the general public would suffer as: court fines would be imposed to persons who definitely cannot pay; they would be subjected to harassment by the police; the resultant economic burden to households of people who may be imprisoned; and potential criminal records further disadvantaging persons living in poverty.
Meanwhile, the society has argued that with the movement of persons curtailed by the curfew Order and an Order barring movement out of infected counties, the question of provision of affordable or free face masks to vulnerable groups is of itself urgent and hence the court should issue a conservatory order in this regard staying the implementation or operation of the Public Health COVID 19 Restriction of Movement of Persons and Related Measures) Rules, 2020 particularly Regulations 4,5,6,7,9 and 11.
And in the alternative, pending the hearing and determination of the petition, the LSK wants a conservatory order be issued directing the Attorney General and CS for Health to supply free face masks to ALL vulnerable groups, the needy, the homeless and street families.
Some of the rules in contest
(i) According to the LSK, the mandatory requirement to be in face masks in public offends Article 27 of the Constitution as it is discriminatory to the vulnerable members of the public.
(ii) Restriction of travel without measures to provide face masks to individuals and families violates their constitutional right to attain the highest attainable standard of health as stipulated in Article 43 (1) (a) of the constitution.
(iii) Requirement for a lone driver to put on a mask while in the vehicle is irrational
Finally, the LSK reprimand the burial of James Oyugi as atrocious. They also argue that the public was not accorded sufficient time to read, understand and engage the respondents on the rules as for example people travelling back to their homes were left stranded as some were found outside the restricted areas and without face masks.
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