In April 2020, following the global outbreak of COVID-19, Kenya adopted the Pandemic Response and Management Bill, 2020 (the Bill), introducing several measures aimed at mitigating the negative effects of the pandemic. ARTICLE 19 recognises the scope of the ongoing global public health emergency under COVID-19 and the necessity for States to take measures to ensure the health and safety of their citizens. At the same time, any restrictions of rights guaranteed under international human rights law as well as in the Kenyan Constitution must be necessary and proportionate. Some provisions, buried at the end of the Bill, raise alarm for freedom of expression and the lasting impact of the Bill beyond COVID-19.
The Pandemic Response and Management Bill, 2020 (the Bill) was drafted by the Senate Ad-Hoc Committee on COVID-19 Situation in Kenya, and was adopted on 14 April 2020. The Bill addresses various socio-economic issues related to the pandemic. ARTICLE 19 has reviewed the Bill and notes that while portions of the legislation provide for justified disaster response and economic relief during the COVID-19 pandemic, a number of provisions threaten to provide a blank slate to limit the fundamental freedoms of individuals for an indefinite and unspecified duration.
Specifically, ARTICLE 19 highlights the following concerns:
• Aims of the Bill: Part I, Article 4 of the Bill states that its aims are to provide a framework for a co-ordinated approach in response and management to a pandemic, to provide temporary relief from inability to perform contractual obligations, and to provide other “temporary measures to address various matters during a pandemic.” The last objective is vague, and coupled with the specific powers granted to the Cabinet Secretary responsible for health matters, who answers to the President, raises significant concerns as to the potential for those powers to be abused and the independent oversight over those measures.
• Lack of specificity in the definition of ‘pandemic’: Part I, Article 2 defines a “pandemic” as merely “an infectious disease occurring across international boundaries.” The Cabinet Secretary has power to recommend a declaration of a pandemic to the President under Part II, Article 6. The scope of a pandemic is not restricted to COVID-19 and does not require designation by any international bodies or public health standards. Given that the scope of the Bill and accompanying powers are tied to the existence of a pandemic, this should be defined with more particularity. For instance, a strain of the common cold or flu that enters Kenya from Uganda may satisfy this definition, since it would be an infectious disease spreading across international borders. Further specificity, for example, may include tying the definition to a designation by the World Health Organisation.
• Lack of specified duration for the emergency provisions to expire: While the Cabinet Secretary and President have broad discretion to declare the existence of a pandemic (and trigger the numerous provisions of the Bill), ARTICLE 19 is concerned there are no built-in safeguards to limit the duration of what is considered a pandemic. The only limitation is a voluntary one contained at the end of the Bill in Part VII, Article 40. This provides that the President “may, in consultation with the National Pandemic Response Committee and by notice in the Gazette, declare that a pandemic is no longer a threat to the social, economic or political stability of the country.” This means that a situation could easily occur where global health authorities have declared an effective end to COVID-19, but Kenya remains in a state of emergency because the President has not exercised discretionary authority to end the pandemic.
Further, it is unclear what “political stability” entails but leaving this determination up to the President, who may have a personal interest in assessing the scope of political stability, makes it susceptible to abuse. Instead, any emergency legislation should contain built-in time limits with a possibility for legislative renewal, ensuring regular and proper oversight and scrutiny.
• Power of the Cabinet Secretary to limit rights and fundamental freedoms: Buried in Part VII, Article 39(2)(b) is a provision granting the Cabinet Secretary the unilateral authority to “make regulations” for the “limitation of rights and fundamental freedoms pursuant to Article 24 of the Constitution.” ARTICLE 19 is concerned about these provisions since Article 24 of Kenya’s Constitution provides that rights “shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity.” We note, as an initial matter, that it is unclear that a regulation passed by the Cabinet Secretary qualifies as a limitation defined “by law,” even if that power is delegated by a legislative body. Even so, any restrictions on fundamental freedoms must be necessary and proportionate and adhere to permissible limitations not only under Kenya’s Constitution, but under international human rights standards.
The Bill provides no specificity or context as to what those limitations might entail, whether they include restrictions on the right to assembly, right to freedom of expression, or other fundamental rights. Neither are those limitations subject to any independent judicial oversight, right of appeal, or other safeguards. A broad emergency relief measure is an inappropriate place for such sweeping limitations. As written, this provision should be stricken entirely by the Bill. Any specific emergency limitations should be passed directly by a legislative body, be properly justified under international standards, and subject to strict duration limitations and oversight.
• Penalties associated with non-compliance with the Bill: Part VII, Article 35 provides for certain penalties not only for ‘obstructing’ an officer in discharging their duties under the Bill but for “refus[ing] to comply with any direction given by a competent authority in the furtherance of provisions” under the Bill. These penalties include imprisonment of up to a year or a heavy fine of one million shillings. ARTICLE 19 finds the penalties even more concerning given that they are contemplated not only for conduct that is presently defined in the Bill, but also, as previously mentioned, any additional regulations implemented after the fact by the Cabinet Secretary. The breadth of these penalties may have a significant chilling effect given the broad authority granted to the Cabinet Secretary to effectively unilaterally establish criminal sanctions.
• Circulating false alarm or warning: ARTICLE 19 is also concerned about the provisions of Article 36(b) of the bill which prohibits circulation of “a false alarm knowingly or warning as to a pandemic or its severity or magnitude leading to panic.” These provisions are problematic for a number of reasons. First, they are vague, lacking necessary clarity as required by international standards for restrictions on freedom of expression. Second, there is no requirement that by spreading “alarm”, a person must act with intent to cause certain harm. We are concerned strong differences of opinion or anger over political decisions related to the pandemic, for example, may be framed as evidence of a person acting “knowingly”. Third, the penalties provided for conduct where it is not necessary to even prove a particular harm to a legitimate government interest, is grossly disproportionate.
• Need to increase transparency: ARTICLE 19 believes that the provisions of Article 33 of the Bill on online deliberations of key institutions (such as the Parliament, country assemblies and court) should be improved by providing for enhanced transparency. Records of remote deliberations and meetings, information and data as transacted by various structures should remain available via open government platforms (including Kenya’s Open Data Portal) to enable access to them by media, civil society, and members of the public. Similarly, we note that previously, corruption has been identified as the greatest risk to Kenya’s cohesion and security. The Bill should anticipate that the corruption might increase during the pandemic and provide stronger measures for prevention of corruption and addressing it. In particular, we believe that the Bill should consider including provisions on protection of whistle-blowing and enhance transparency and accountability of funds managed and administered by various structures provided for in the Bill. Additionally, forfeiture of anything that has been acquired illegally from the fund, should also be incorporated under Article 37, as a penalty for misappropriation of relief money or material.
• Collection and publication of data relating to the pandemic: While it is undoubtedly an important public health goal to have available data regarding infection and transmission during a pandemic, ARTICLE 19 believes that proper safeguards should be in place to ensure that data collection practices respect individuals’ privacy rights. Part VII, Article 39(2)(d) provides for data collection and publication “relating to the pandemic.” It is unclear what qualifies as “relating” to a pandemic, particularly as a pandemic itself is broadly defined. The scope and retention of data collected should be clarified, and limitations should be in place to ensure that any collection and publication does not infringe upon personal or confidential medical information of individuals.
• Surveillance: ARTICLE 19 is also concerned about the Bill providing for broad surveillance of patients in outpatient and hospital settings and their contacts (Article 20 para c). The respective provisions are broad and may also lay foundations for longer-term mass surveillance and data exploitation by state and non-state actors. Although contact-tracing for infected individuals and those who have been in contact with them is a legitimate measure to reduce the number of infections in the society, there is a total lack of clarity on how the Bill envisions these to be conducted while respecting human rights. It is also silent about data protection issues and safeguards against abuse. We also believe that all data-sharing agreements between the government, hospitals and private entities in the context of the operationalisation of the Bill must meet international standards on privacy and data protection and should be a subject of public scrutiny through the respective National and County Parliamentary Committees and resultant reports availed to the public for scrutiny. Article 31 (1) should also be amended to give clarity on what permissible data sets will be used for the identification of vulnerable persons, households and informal sector workers as the National Integrated Identity Management System (Huduma Namba) data base cannot be used until appropriate safeguards are put in place, as mandated by the High Court of Kenya. Given the likelihood that these data sets will contain copious amounts of data subjects’ personal information, it is important to stress adherence to the Data Protection Act (2019) in this process.
• Inclusion, diversity and protection of civic space: Article 8 and 4 provide for the establishment of the National Pandemic and County Pandemic Committees; these can co-opt any other persons as they may deem fit in the process of response and management of pandemics (under Articles 12 and 17 of the Bill). ARTICLE 19 notes that effective and efficient mitigation of the impacts of the COVID-19 pandemic depends not only on national and sub-national mechanisms but also on cooperation with all stakeholders. Civil society has a critical and central role to play in response and management of pandemics. It is unfortunate that the Bill does not recognise civil society as a partner in the process. We believe that civil society should be integral in the composition of structures that have been proposed within the Bill. The Bill should also refer to Article 56 of the Constitution of Kenya (2010) in the process of appointment to the committees.
ARTICLE 19 calls on the Government to amend the provisions of the Bill and ensure that all measures that are used to tackle the COVID-19 pandemic are based on full protection and respect for human rights. We remain available to work with the Kenyan Government and the legislators to bring this legislation in line with applicable international standards during the public health emergency.