Access to justice, provided under Article 48 of the Constitution of Kenya, 2010, is a fundamental right that has been affected by COVID-19 pandemic since its first case confirmation in Kenya on the 6th March 2020. On 15th March 2020, the President gave directives[i] that informed a press statement by the National Council on the Administration of Justice (NCAJ) that directed the scaling down of legal services for two weeks.[ii] Further, on the 24th March 2020, the Judiciary directed their staff to work from home,[iii] prompting courts to give dates for the hearings and mentions in various courts. Interestingly, in the efforts to further curb the spread of the corona virus, the government declared dawn to dusk (7 pm to 5 am) curfew to be effected from 27th March 2020. The curfew exempted some services from being affected by the curfew, and sadly legal services were not among them. On 1st April, NCAJ released a statement that was meant to address the operationalization of the justice sector in the wake of the pandemic. The statement among other things confirmed that the justice system had not been stalled but was in progress and that they had employed various measures among them being the use of technology to carry out its duties. The use of technology is[iv] to be guided by the gazette practice directions on Electronic case management.
Following these actions, it is clear that the right to access to justice has been limited to a certain extent by both the government and the judiciary. This article interrogates the limitation of this fundamental right. The main question that the article seeks to answer is whether the limitations of that right is constitutional and if not, the recommendations to amend this constitutional breach.
Limitation of a right under Chapter 4 of the Constitution of Kenya
The Bill of Rights[v] appreciates that not all human rights can be absolute. It appreciates the principles of relativism and the proportionality of human rights. Thus, the Constitution provides for the limitation of rights under Article 24. The limitation must, however, meet the following two major thresholds as observed by Justice Mwita’s decision[vi] and as provided under the Article:
- The right should only be limited by law; and
- The limitation should be reasonable and justifiable
Notably, when limiting the right, it should be reasonable and justifiable in an open and democratic society and observe the principles of human dignity, equality, and freedom.[vii]
To fully adhere to the threshold of reasonably and justifiably limitation in an open and democratic society, Justice Dickson C J in R v Oakes[viii] came up with two criteria. First, is that the objectives of the limitation must be sufficiently important, and second, the party invoking the limitation must show the alternative means chosen are reasonable and demonstrably justifiable.[ix] The second test ensures that the principle of proportionality that aims at ensuring that the limitation is fair and not arbitrary. In essence, it balances the effects of limiting an individual’s rights vis-à-vis its justification and reasonableness in an open and democratic society. If the latter over weighs the former, then the right can be limited.
Human rights law has also developed a criterion that should be considered when limiting people’s rights in the context of a serious public health threat that limits the life of a nation. This criterion includes; the limitation-
- Ought to have the force of the law
- Should be strictly necessary
- Based on scientific evidence
- Neither arbitrary nor discriminatory
- Limited duration
- Respectful to human dignity
- Subject to review
- Proportionate to achieve the set objective[x].
In the COVID 19 scenario, the government while giving the various directives did not foresee the possible limitation of the right to access to justice by the judiciary. It was simply adhering to the directions of the World Health Organization which had declared COVID 19 as a global pandemic. It called on governments to take immediate measures to stop the spread of the virus. The measures are taken by the government and the NCAJ that to some extent limited access to justice was reasonable and necessary as they were meant to help address this pandemic as well as assist in flattening the curve. One of the known remedies that have been advocated to help in dealing with the pandemic is social distancing. Most of the courts in Kenya are small and as a result, they are always full. Continuance with the normal court activities without taking these measures would jeopardize the life of Kenyans and would be against the International standards that have been set in addressing the pandemic. The limitation of the right to access to justice was strictly necessary and in line with the law. Furthermore, rights are indivisible. The right to health due to the pandemic is at risk and hence trying to address and restore the right would to some extent interfere with the other rights.
The limitation of access to justice is only until the pandemic is sorted and hence is subject to review. The limitation is not infinite. Furthermore, the press statement released by the NCAJ on the 1st of April provided alternatives to ensure that Justice is not halted. The use of technology was one of the alternatives where judges would be engaging in a virtual trial with inmates as they cannot be produced in court. Consequently, judges have and will continue to deliver their rulings and judgment through video conferring as a way to enhance continuity of the right to access to justice. In every superior court as well as lower courts there are duty magistrates each day who deal with urgent matters. Plea taking in criminal courts is also ongoing and the office of the ODPP remains open for purposes of ensuring that this goes on. This alternative means employed by the justice system are reasonable and proportionate to the aim sort to be achieved; help in preserving the right to health of the Kenyans and flattening the curve of COVID-19. The limitation is not arbitrary nor is it discriminatory but was employed out of necessity. It meets the threshold of the law and the human rights standards.
[iv] Gazette notice 2357
[v] Chapter 4 of the Constitution of Kenya, 2010
[vi]Jack Mukhongo Munialo& 12 others v Attorney General & 2 others  eKLR
[vii] Article 24 of the Constitution of Kenya, 2010 and Jack Mukhongo Munialo& 12 others v Attorney General & 2 others  eKLR at Para. 69.
[viii] R v Oakes (1986) 26 DLR at 225
[ix] R v Oakes (1986) 26 DLR at p. 106
[x] Human rights watch, “Human rights dimensions of Covid-19 Response” March 2020.