Written by Levi Munyeri.
A gale is sweeping across the globe, wreaking the foundations of human interaction like nothing the world has witnessed in post-world wars era.
The last time the world witnessed a pandemic of similar devastation was the deadly Influenza Pandemic of 1918 that extinguished an approximate 40 million people.
A striking difference between the 1918 and 2020 pandemic is that the current one is exceedingly disruptive of daily human life in comparison to the 1918 one. In the golden age of globalization when thousands of people crisscross continents within a day for commerce or leisure pursuits, the spread of a contagious virus can be beyond viral. Equally devastating is the movement restrains, compulsory and voluntary, which disrupt human lives and disintegrate freedoms in a manner that invoke grave anxiety in human rights jurisprudence.
Containing the spread of Coronavirus by lockdown
The purpose of this article is not to sink into the merits of the lethality of the Coronavirus but to comment on the legality and procedures of a possible declaration of a lockdown in Kenya as a measure to suppress spread of the virus.
Cities in Italy are already experiencing life-halting lockdowns. Movement of persons outside their homes is extremely limited as the police patrol the streets to ensure full compliance with the lockdown. Borrowing from her developed counterparts, Kenya is likely to declare a lockdown if the emergency heightens.
Although for a sacred cause of suppressing the spread of a lethal virus, a lockdown obliterates a constitutional architecture and indefinitely suspends fundamental human rights without an imperative constitutional interrogation.
Distinguishing Lockdown form Quarantine
Quarantine is legally distinguishable from lockdown. Quarantine is the seclusion of a person who has been potentially exposed to a contagious disease for a period of time as an adverse measure to control spread of the disease through human interaction. It is expressly permitted by law during a public health emergency.
Lockdown refers to a compulsory area-wide order that persons stay in their homes with a ban on travels. The orders affect entire cities hence distinguishable from quarantine whose effect are on individuals suspected of exposure. Unlike quarantine, a lockdown is not expressly contemplated in our laws. Therefore, any effort to impose such a blanket curtailment of the movement of persons may fail the legality test if declared without keen regard of constitutional procedures.
Limitation of freedom of movement
In the Kenyan context, freedom of movement is part of a body of fundamental constitutional rights that can be limited by law though only to the extent that the limitation is reasonable in an open and democratic society.
To what extent can the government suspend the freedom of movement of a people in the wake of a public health emergency?
The penners of the Constitution contemplated the limitation of the movements of specific persons in justified instances such as a legal arrest and imprisonment. Unfathomable to them was an apocalyptic scenario where an entire city risks indefinitely placement under a lock down to control the spread of a virus.
Movement to earn daily bread
The unique challenges of developing countries will pop up their ugly heads if an imposition of a lockdown is attempted in Kenya. Millions of Kenyans live on the informal sector where eating is literally from hand-to-mouth. They rely on per-day wages to satisfy their daily food rations. Non-attendance to their casual jobs for a couple of days sets up their families for starvation. A lockdown is sustainable in the USA or Europe where there are strong social support structures with well-equipped social workers and volunteers on standby to replenish depleted households.
In Kenya, the government and its citizenry alike are persons of straw devoid of emergency preparedness thus incapable of surviving a long lockdown. If imposed, a lockdown might convert a medical emergency to a humanitarian crisis of life-threatening proportions. Not only the freedom of movement will be at stake but a cocktail of the most fundamental rights necessary for the survival of a people, including social-economic rights.
Jurisprudential foundations of freedoms (liberty)
Beyond the hard law as preserved in the Constitution, the wide tenets of human rights jurisprudence have a voice in this discourse. The rights of a person to live free from choice impediments is a cardinal pillar that supports an array of fundamental human rights that distinguish us as humans from the rest of beasts.
A government-imposed lockdown poses a hard jurisprudential question surrounding liberty and life. The hard question overflows from jurisprudences to revolutionary underpinnings that should linger in the minds of jurists beyond the current pandemic: are constitutional liberties of men so sacred to supersede life-saving efforts during a State of Emergency?
Give me liberty or give me death is a piece of eloquence pronounced by the celebrated American Patriot, Patrick Henry, at the Virginia Convention of 1775 to convince the convention to pass a resolution allowing Virginia to join the American Revolutionary War. The now venerated slogan was uttered in a context distinct from a pandemic crisis to denote liberation warfare. However, to a liberty-obsessed mind, the slogan commands relevant now as it did then, albeit in a different context: liberty must be upheld always, even when there is an eminent threat of death. Bottom of Form
Drawing analogy from a maxim in tort law – volenti non fit injuria, health people may voluntary take the risk to navigate the streets should do so without government restrain. They have chosen to risk to perish rather than relinquish their liberties. Certainly they won’t be the first. Men have joyously taken this stand across various troubled epochs in human history. The government may have a legal justification to dictate the manner of such movements in its frantic efforts to protect human safety, but through the lens of mature human rights, it remains a trespass of freedoms.
Available legal paths to Lockdown
The struggling Kenyan government has several legal options at its disposal if the spread of the virus escalates to a point of lockdown contemplation. It can choose to enact a ‘Prevention of Pandemics Act’ to vest on the government draconian powers to order for a lockdown. Whether such laws can survive if subjected to constitutional screening is uncertain.
The government also retains a prudent option of imposing a legal lockdown through invocation of Constitution to declare of a State of Emergency. The first step in imposing a lockdown is a declaration of a State of Emergency by the President with approval of Parliament. After the declaration of a State of Emergency, the president is permitted to suspend parts of the bill of rights. Only then can the President legally declare a lockdown in a part or the nation. This constitutional provision grants the Supreme Court the powers to determine the validity of a State of Emergency and interrogate the constitutionality of any limitation of a fundamental right during the State of Emergency.
Perhaps the best legal option, the directions of the government on the need to restrict human movements during the pandemic ought to remain advisory and not mandatory orders with penal sanctions. Imposition of mandatory restrictions on movement of a free people marks an unhealthy precedent of arbitrary suspension of rights during public emergencies.
In an unfortunate escalation of the virus spread, the government should strongly advise against out of homes movements as opposed to imposing a lockdown. After all, a lockdown may be in vain as no form of strict enforcement can force a starving people to languish in their necessaries-depleted homes. With a strong advisory, people will exercise their discretion and move out only in compelling cases of extreme necessity. This will subvert a cumbersome legal process of arresting and charging desperate masses for violation of lockdown orders as it is now the case in Italy.
If the government, in its wisdom or lack of, chooses to go the lockdown way, Human Rights and the Constitution shall be greatly obliged should it prior seek the advisory opinion of the Courts before any suspension of the hallowed freedom of movements of a free people. Of course, no public health emergency should scare the seat of justice from convening to dispense its sacred mandate.
*Levi Munyeri is a
Constitutional Lawyer and an Advocate of the High Court of Kenya
 Kolata, G. B. (2011). Flu: The story of the great influenza pandemic of 1918 and the search for the virus that caused it.
 Nadeau, B.L. & Donato V.V.(2020, March 19) Italian doctors hope for a sign the Coronovirus lockdown is working, because there’s no Plan B. https://edition.cnn.com/2020/03/18/europe/italy-coronavirus-lockdown-intl/index.html
 Public Health Act, Chapter 242, Laws of Kenya, Rev. 2012 (1986] Sec. 2 defines Isolation in reference to quarantine.
 Section 36(e) Public Health Act, Chapter 242, Laws of Kenya, Rev. 2012 (1986]
 Article 24, Constitution of Kenya, 2010
 Jarnow, J. (2005). Patrick Henry’s Liberty or death speech: A primary source investigation. New York: Rosen Pub. Group.
 Article 58, Constitution of Kenya 2010
 Guardian (2020, March 18) Italy charges more than 40,000 people for violating lockdown https://www.theguardian.com/world/2020/mar/18/italy-charges-more-than-40000-people-violating-lockdown-coronavirus