By Susan Kendi
Courts set up to try people accused of breaking Covid-19-related regulations in the Nairobi area have ordered them to pay fines of up to 10,000 shillings or do community service for up to two weeks or have ordered their release.
Over a five-week period, the two temporary magistrate’s courts based at Moi International Sports Stadium in Kasarani had not sentenced anyone to imprisonment for violating the Covid-19-related regulations, according to information provided to Journalists for Justice by the Public Affairs and Communications Unit of the Judiciary. The Covid-19-related regulations provide for imprisonment of up to six months or a fine of up to 20,000 shillings or a combination of the two penalties.
Since March 15, the judiciary has taken measures to decongest the prisons so as to reduce the spread of a new strain of coronavirus that causes the Coronavirus Disease 2019 (Covid-19). These measures include judges and magistrates reviewing all cases in which offenders were serving sentences of less than six months to determine whether they can be released and decongest the prisons. The National Council on the Administration of Justice (NCAJ) ordered such a review as part of measures to stem the spread of Covid-19. Chief Justice David Maraga chairs the NCAJ.
The first case of coronavirus in Kenya was announced on March 13. The government has instituted a number of measures since then with the aim of reducing the spread of the virus. These include shutting down schools and bars, requiring public transport vehicles carry half of their licenced passengers and requiring people to wear face masks in public. On April 6, the government announced a night curfew as part of those measures.
On the first curfew night the police acted with such brutality against people caught outside their homes after curfew that President Uhuru Kenyatta was forced to apologise to the public for the brutality. This was the first time a Kenyan president had apologised for police brutality.
As they have enforced Covid-19-related regulations, the police are alleged to have killed 23 people or injured 40 individuals between March and July this year, according to the Independent Medico-Legal Unit (IMLU).
Between May 7 and June 5, according to the Judiciary’s Public Affairs and Communications Unit, the two magistrate’s courts at Kasarani handled cases involving more than 2,000 people who had been arrested for breaking Covid-19-related regulations and booked at 35 police stations in the Nairobi area.
Journalists for Justice is unable to give precise figures of the number of people arrested between the period May 7 and June 5 because there are discrepancies in the figures the Judiciary’s Public Affairs and Communications Unit provided. The unit provided Journalists for Justice with a table divided into Week One to Week Five and broken down into different categories such as accused persons on community service or people fined.
The column for accused persons adds up to 2,682. But when one adds up the different categories of accused the total comes to 2,379. There is a similar discrepancy in the column for accused persons who have been sentenced to community service. Adding up those sentenced in Week One to Week Five the total comes to 622. But the total given at the bottom of the column is 662.
To date Journalists for Justice has not received a response after seeking clarification from the Judiciary’s Public Affairs and Communications Unit about these discrepancies.
According to the Judiciary’s Public Affairs and Communications Unit, two magistrates sat each day hearing the cases involving the more than 2,000 accused of violating Covid-19-related regulations between May 7 and June 5. Two magistrates heard cases each day for the five weeks but it was not the same two magistrates who heard cases throughout the five weeks. The magistrates changed. A total of 12 magistrates presided over cases during the five-week period.
These magistrates ordered 1,581 individuals who pleaded guilty to pay fines of between 200 shillings and 10,000 shillings. Journalists for Justice did not find any discrepancy in this figure of the number of people fined. The magistrates ordered more than 600 people who pleaded guilty to perform community service for between one day and 14 days at police stations, chief’s camps and in Kasarani. The Public Affairs and Communications Unit of the Judiciary did not specify what community service these individuals performed.
The magistrates also set free 42 individuals under provisions of the Penal Code and Criminal Procedure Code. According to the Public Affairs and Communications Unit of the Judiciary, 23 individuals pleaded not guilty. It is unclear what happened to their cases. The magistrates issued arrest warrants for 71 individuals.
The Law Society of Kenya challenged some of the Covid-19-related regulations, such as the night curfew and public transport restrictions, in a petition they filed on April 14. The Law Society of Kenya argued the regulations were unconstitutional because the Cabinet Secretary for Health had gazetted them before subjecting them to input from the public and before Parliament had voted on them. In his judgment issued on June 25, Judge James Aaron Makau declined to grant the Law Society’s petition to declare the regulations unconstitutional or suspend them.
Judge Makau said that based on his reading of previous court decisions in Kenya, “the issue of public participation must be considered on a case by case basis as public participation may not be applicable in all cases depending on the circumstances in existence at the time, and public participation, must in my view be considered in the peculiar circumstances of each case as no two cases are the similar.
“I therefore find the Petitioner’s and the 1st Interested Party’s contention that the Rules should be declared unconstitutional for lack of public participation have failed to take into account the peculiar circumstances of the current environment and the fact that indeed the Respondents facilitated consultations as relates to restrictions of movement generally. I find therefore public participation could not be applicable at the time the Rules were made. I find no basis or justifiable reason to declare the rules unconstitutional, null and void,” said Judge Makau.
The first interested party Judge Makau referred to is the Kenya National Commission on Human Rights.
