By Winfred Gakii of ARTICLE 19
In its effort to combat the Covid-19 pandemic, like most countries in the world, in 2020, Kenya’s government introduced a range of regulations to reduce the spread of the virus, including imposing curfews, orders to maintain social distance and for wearing facemasks, and a prohibition on public gatherings. These were introduced as subsidiary laws under the Public Health Act, which was put in place before the pandemic, but was updated to address it.
These regulations restrict various rights, among them the right to freedom of assembly and the right to protest. Under certain circumstances, the right to freedom of assembly can be restricted, but such a limitation must be provided by law, serve a legitimate purpose and be necessary and proportionate in any democratic state. As Kenya experiences a third wave of Covid-19 cases, the government has been quick to extend a night curfew for 60 days and has recently banned political protests for a month.
In Kenya, the regulations have been and continue to be applied discriminately. For example, politicians are allowed to hold public political gatherings to campaign for the 2022 general election. In contrast, citizens are arrested for protesting. They are charged for failure to adhere to the regulations prohibiting public gatherings and failure to maintain social distance. In May 2020, while submitting a petition to the Nairobi Water Services sharing the grievances of the residents of the Matopeni area, protesters were arrested and charged under the regulations. During the 7 July 2020 SabaSaba march, protesters were harassed, arrested and detained. Although they were released without charges after a day, their march was completely derailed. In August 2020, during the #ArrestCOVID-19Millionares protest, seven protesters were arrested in Mombasa and charged under Covid-19 regulations.
The Covid-19 regulations serve a legitimate aim. But they should not be used to suspend all protests. Even during the pandemic, people must have avenues to express their opinions including through protests. In fact, this right is absolutely crucial during a health crisis so that people are able to discuss their experiences and share information that could be valuable to others, including about protection from catching coronavirus. The restrictions must be applied in a very specific way, to accurately target what is necessary in the interest of public health. The blanket ban and the discriminate application of the regulations undermines not only the enjoyment of the right to protest, but also Kenya’s measures to fight coronavirus because it has an impact on how people share information.
Interview with Churchill Suba of the Civil Society Reference Group