Risk of a power grab in times of a pandemic

Last week, Health Cabinet Secretary Mutahi Kagwe published a number of legal notices in the endeavour to restrict movement and combat the spread of the Covid-19 pandemic.

This was not unique, because many countries around the world have taken legal measures in intensifying efforts to contain the spread of the virus.

Granted, it might be necessary that a wide range of rights and liberties need to be limited to restrict the spread of the pandemic and possibly save lives.

But it should not be lost on all that whatever measures are taken must be within the law. Put differently, even though it might be argued that this is a time of emergency, it cannot be the case that all rights, liberties and legal processes cease to be of significance.

A state of emergency has not been declared, but even if that were to be the case, the rule of law must continue to apply and the Constitution and all other laws must not be jettisoned, except as may be permitted by that law.

This is of concern because many people are beginning to debate whether the fear of infection — that is, the right to health and with it the right to life — is being used as a platform to establish autocracy under the guise of public health measures.

RIGHT TO INFORMATION

Constitutional scholars are arguing that unless the law specifically places the right to health above other constitutional rights, it would be a risky proposal for the suspension of all other rights in the endeavour to prevent the spread of a disease and uphold another right — that of life.

Some examples here arise from the actions of some jurisdictions where the measures taken are thought to be far from measured and reasonable.

The government of a country in eastern Europe took a number of far-reaching administrative actions and issued decrees whose legal basis was contentious.

When a journalist, under the country’s Public Information Access legislation, asked the government to cite the legal basis on which it had formed a crisis headquarters, the government instead passed a law suspending the deadlines for administrative proceedings, including under the freedom of information legislation and, of course, the period during which the response to the journalist’s question should have been given.

The same government also passed a law granting it full and complete control of the budget until September 2020, as well as a law that requires the anti-corruption authority to publish all transactions by public bodies online.

These actions leave many wondering how the public’s right to information on how public money is spent hampers the fight against the pandemic.

The right to information is not only endangered in that way, but allied to it are the perils faced by citizens and journalists in countries where governments are using the laws to inhibit freedom of speech.

MOVEMENT RESTRICTED

In Kenya, a person was prosecuted for, it was alleged, publishing a false blog post or tweet of information as to the number of persons infected with the coronavirus in the country.

South Africa has also had concerns raised on infringements of free speech following the enactment of regulations that criminalise disinformation on the Covid-19 outbreak.

The right that is most challenged by the pandemic is that of movement. Almost all countries where the pandemic has taken root are under different categories of limitation of the right to movement.

In Italy, a complete lockdown has been in place for almost a month and similar lockdowns for at least 21 days have been announced in India and South Africa.

In Kenya, there is currently a mixed approach of containment in selected areas deemed to be epicentres of infections and a more general curfew in others.

It would be remiss to say that all restrictions of movement are themselves unreasonable and constitutionally suspect, but the manner of application of the restrictions, like the Kenyan scenario of police officers harassing citizens in purported enforcement, cannot lend credence to the claim that concerns over these restrictions are not without basis.

Hungary has an interesting law that prohibits persons below the age of 65 from shopping in grocery stores between 9am and noon during the period of this pandemic.

PRIVACY

This is meant to assure social distancing but also to keep elderly citizens, deemed to be more prone to infections, away from dangers brought about by intermingling.

But even while people have a limited right to movement and are required to stay in their homes, the right to privacy, which they would expect in these circumstances, is still imperilled.

In Israel, civil liberties campaigners acted in rage and opposed the proposal by a subcommittee of parliament (but which it did not vote upon) on the grounds that it needed more time to assess the proposal for the intelligence services to be used in a national campaign to stop the spread of the virus.

The intention was to provide surveillance of persons who had been in contact with infected persons for them to self-isolate for the required period.

It was intended to use citizens’ smartphones for surveillance and mass containment, but it raised a lot of concerns on the constitutional rights justification for such intrusive measures, even in the face of a pandemic.

The right to property has also come under pressure in these times. In Kenya, the regulations gazetted by the CS for Health permit the police to detain vehicles that contravene the regulations either by carrying more passengers than permitted, or for flouting other regulations, such as going into or leaving an area prohibited from public travel during the period of the regulations.

POWER GRAB

Constitutional issues abound whether such wide powers of confiscation of private property can be given by a CS within the Executive branch rather than by Parliament, leave alone whether the Constitution would permit the deprivation of the right to property without a judicial order or under those circumstances at all.

The hope is that the pandemic will soon be over and the restrictions lifted. But there is credible reason to believe that some governments and authorities have used the pandemic for a power grab and not given an indication on when these measures could be lifted.

This explains why all persons concerned with the rule of law must watch and pray. The former to ensure that these measures are not given permanence, and the latter to get the pandemic out of the way as soon as possible.

The writer is Head of Legal at Nation Media Group PLC.