On Thursday, 2nd July 2020, 13 Petitioners filed an urgent case against various several government
officials in the High Court in Nairobi for failure on their part to provide information sought from them in
accordance to Article 35 of the Constitution of Kenya, 2010 and the Access to Information Act, 2016
in the context of the COVID-19 pandemic responses in Kenya.

The law obligates the State and public entities to provide information, both proactively and upon
request, so that citizens can be informed of the State’s actions, participate in State affairs, and enjoy
the rights protected under the Constitution.

Although the right of access to information is always important, timely and accurate information is particularly important during a global health pandemic when the right to life, health and the freedom and security of citizens are at stake.

The Court has since certified the matter as urgent and given directions for the Respondents to be
served by close of business on Friday 3rd July 2020. The case will be mentioned before the Court on
Tuesday 7th July 2020 for further directions and orders.

COVID-19 was declared a pandemic by the World Health Organization on 11th March 2020. Kenya’s
first COVID-19 case was confirmed only a day later on 12th March 2020
.
On 20th March, the government requested that public service vehicles reduce the number of passengers
they carry to limit the risk of spreading the virus during commutes. On 22nd March 2020, the government
announced that all international flights, except for cargo flights, would be suspended as of midnight
on 25th March 2020. Any travelers, entering the country before the suspension were quarantined in
government-designated facilities.

The government also imposed a nationwide curfew which prohibited movement between 7 PM and 5
AM. The Cabinet Secretary for Interior and Coordination of National Government published the Public
Order (State Curfew) Order, 2020 which gave effect to the President’s announcement. The curfew has
since been extended severally, with the hours being reviewed to between 9.PM and 4.AM on 6th June
2020.

Subsequently, the Cabinet Secretary for Health published the Public Health (Prevention, Control, and
Suppression of COVID -19) Rules, 2020—the ‘Prevention and Control Regulations’. The regulations gave
the Cabinet Secretary the authority to designate ‘any place’ an infected area and to regulate activities
within infected areas when ‘deemed necessary for preventing the spread of or for the eradication of
COVID-19.

On 6th April, 2020 the Cabinet Secretary for Interior published the Public Health (COVID-19 Restriction
of Movement of Persons and Related Measures) Rules 2020—the ‘Movement Restriction Regulations’.
The Movement Restriction Regulations imposed broad limitations on individual movement and
transportation. With certain exceptions, the rules limited people’s movement into and out of an infected
area during a restriction period. The rules also prohibited both public transportation and private vehicles
from going in or out of an infected area. The Regulations also introduced the requirement that people
wear ‘proper face masks’ in public places and maintain the one-meter distance.

This petition was filed by 13 petitioners including;  The 11th Petitioner, The Kenyan Section of the International Commission of Jurists Kenya (ICJ Kenya) is a non-governmental, non-profit, and member-based organization of jurists committed to the realization and promotion of human rights, justice, rule of law and democracy in Kenya and around Africa. ICJ Kenya is a member of the Africa Freedom of Information Centre.

The full Communique can be accessed here: https://icj-kenya.org/e-library/legal-opinion/send/5-legal-opinions/320-communique-petition-218-of-2020

 

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