Like all other parts of public life, the administration of justice and access to legal remedies and dispute resolution have been severely disrupted by the COVID-19 pandemic. The notes series ‘Rule of Law in the time of COVID-19’ provides a perspective from the field of how the justice system has been affected by the pandemic and how national justice actors are responding and adapting to the situation. By documenting responses and practices by those working in some of the world’s most complex environments, the notes seek to provide a better understanding of opportunities and challenges for promoting the rule of law during this extraordinary time.
The notes series aims to provide an in-country snapshot from the perspective of IDLO’s country offices.
The first case of COVID-19 was confirmed in Kenya on 13 March 2020. The Government of Kenya has put in place a very robust testing, contact tracing and treatment response. The number of testing laboratories and capacity overall has increased from only two testing sites in March to more than 20 laboratories conducting tests in more than 10 counties. The Ministry of Health has also started proactive voluntary testing in communities with high numbers of infections. This has resulted in the lockdown of Nairobi, Kilifi, Kwale, Mandera and Mombasa counties since 6 April, as Nairobi and Mombasa account for the highest numbers of infections, followed by the other three counties.
Emergency measures
Immediately after confirmation of the first case of COVID-19, the Government of Kenya put in place social distancing measures that included the indefinite suspension of all public gatherings, such as weddings, funerals, and church and mosque congregational meetings. All schools, universities and educational institutes were ordered to close indefinitely, and a nationwide curfew was put in place from 7 p.m. to 5 a.m. daily, effective from 27 March. All international flights were suspended, apart from cargo planes and those arriving to evacuate foreign nationals. The Government of Kenya has also suspended the entry of passenger ferries from Tanzania and Somalia, effectively closing its international borders with these countries. Only cargo vehicles are permitted to enter, on condition that drivers submit to mandatory COVID-19 testing and subsequently test negative.
The government has put in place a Senior Citizens Program aimed at providing aid to the elderly, as well as direct cash grants to vulnerable households. These interventions have also included the provision of food aid. In addition, on 25 April, the President announced measures to cushion citizens against the loss of income as a result of COVID-19. These include reduced income tax for those in formal employment, and a reduction in corporate taxes. The government also introduced the National Hygiene Programme which targets youths and vulnerable households in informal and vulnerable settlements. It aims to raise awareness of COVID-19 as well as to facilitate local production of face masks, which have become mandatory in the fight against the virus.
Impact of COVID-19 on the justice system
Judiciary
The National Council on Administration of Justice (the judiciary, the police and the Office of the Public Prosecutor), headed by the Chief Justice, released a statement on 15 March on the measures being taken to address the COVID-19 outbreak. All court sittings were suspended except for urgent matters, as well as all foreign travel for justice institution staff, and all conferences, workshops, training or colloquia until further notice. Bringing prisoners to court for remand hearings was also suspended. The Chief Justice directed all court houses to close to the public, and instructed each court station to operate with three members of the judiciary (a judge/magistrate, a court administrator and a court assistant to serve as a customer care service desk contact). The judiciary is increasing its use of ICT to enable judges and magistrates to deal with cases, including e-filing of judgments, video conference remand hearings for prisoners in custody, and the delivery of court judgments through video conferencing and skype.
Police
The Inspector General of Police, in consultation with the National Council on Administration of Justice, has also developed guidelines for the disposal of criminal matters at police stations, except for serious matters which must be forwarded to court. This is aimed at reducing the number of pretrial detentions and ensuring that citizens access justice.
Judicial Training Institute
The Judicial Training Institute (JTI) coordinates all capacity-building interventions for judicial officers. As a result of the social distancing measures put in place by the government, JTI has had to suspend all training, convenings, colloquia and workshops. To mitigate the challenges arising from the COVID-19 measures, JTI has been in consultation with various partners including IDLO to transform its convening platforms from physical to virtual.
Oversight bodies
These bodies include the Kenya National Commission on Human Rights, the National Gender and Equality Commission, the Office of the Controller of Budget, and the County Assemblies Forum. While the work of these oversight bodies has been impacted by their inability to operate from their offices, their mandate is more relevant than ever during this pandemic. The Kenya National Commission on Human Rights and the National Gender and Equality Commission have a mandate to oversee the protection of human rights, with a specific focus on gender equality and inclusion of the most vulnerable and marginalized. As a result of the COVID-19 pandemic, rights to freedom of movement and free association have been restricted, which has had a knock-on effect on socio-economic rights such as the right to a livelihood, as many people in the informal economy struggle to make a living.
Though both the Office of the Controller of Budget and the County Assemblies Forum have a critical mandate, they do not fall under essential services, and a lack of resources and infrastructure makes it more difficult for them to engage virtually with stakeholders. This has impacted important governance processes, such as the annual budget at both the national and county levels, as the various assemblies are not able to meet to discuss proposals in line with relevant constitutional provisions.
IDLO’s response
IDLO has held consultations with key partners/stakeholders to enable continued program implementation while considering the impact of COVID-19, and as a result has identified interventions to be accelerated or enhanced in order to improve access to justice and promote the rule of law. In some instances, program interventions have had to be repurposed to address gaps emerging gaps. The following justice sector actors and institutions have been identified as requiring immediate support;
The judiciary: IDLO has been supporting the judiciary’s automation program since 2017. Accordingly, with the closure of the courts, IDLO’s support for judiciary automation has significantly increased. IDLO is supporting the ICT Directorate to operationalize functionalities of the e-filing platform for all courts in the judiciary. This will include increasing hardware and software support for e-filing of cases, the provision of platforms to hold court sessions virtually as well ensuring that the necessary policies, laws and regulations are in place to facilitate the effective operation of virtual courts.
IDLO will support the Judicial Training Institute (JTI) to set up an e-learning platform and convert at least three of its curricula to this platform. In addition, JTI will partner with IDLO to develop a virtual mediation guide for court-annexed mediations.
In light of an increase in the number of cases of sexual and gender-based violence (SGBV) during the pandemic, in partnership with the police IDLO has also focused attention on Police Regional Training Institutions to offer training on gender and inclusion matters for synergy within sectors responding to and preventing SGBV. IDLO will provide this support in the context of already existing capacity building of police officers in gender departments in all police stations, through providing user-friendly versions of standard operating procedures on managing SGBV.
The Kenya National Commission on Human Rights and the National Gender and Equality Commission have requested support to document emerging trends and analyze violations of human rights during the COVID-19 pandemic, with a specific focus on the most marginalized and vulnerable. In addition, both institutions have indicated that they require support to document, adequately track and provide support to citizens experiencing human rights violations during the pandemic in areas outside of the capital. IDLO has established partnerships with these institutions, and its focus has been to strengthen their platforms for engagement with the satellite offices of these bodies in order to perform their monitoring.
The Office of the Controller of Budget has also reached out for support to assess the level of participation by citizens, at both the national and county levels, in the budget-making processes which should be underway. In addition, IDLO has received a request to undertake an assessment of how citizens believe they can engage with national processes, such as the budget, in times of crisis.
The County Assemblies Forum and IDLO are working developing a framework for engagement for County Assemblies during the pandemic, which could become a blueprint for engagement in other emergencies.
IDLO is currently implementing three programs in Kenya: Supporting Commercial Justice Sector Reforms (supported by the Netherlands); Support to Human Rights, Access to Justice and Equality (supported by Danida); and Improving Capacity of Key Kenyan Institutions Towards Strengthening Access to Justice, Transparency, and Accountability at both National and County Levels (supported by Sida).
Image credit: Facebook / WHO Kenya