REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION ETITION NO. OF 21 LAW SOCIETY OF KENYA.. PETITIONER/APPLICANT VERSUS. HILLARY MUTYAMBAI, INSPECTOR GENERAL NATIONAL POLICE SERVICE. : aesresiaisse 1*RESPONDENT ERED MATIANGI, CABINET SECRETARY FOR INTERIOR AND. COORDINATION OF NATIONAL GOVERNMENT, ATTORNEY GENERAL... THE HON. CHIEF JUSTICE... MUTAHT KAGWE, CABINET $I HEALTH... 2" RESPONDENT 3° RESPONDENT 4 RESPONDENT CRETARY FOR RESPONDENT -AND- KENYA NATIONAL COMMISSION ON HUMAN RIGH! 1" INTERESTED PARTY FIDA-KENYA. : 2" INTER PARTY INDEPENDENT POLICE OVERSIGHT AUTHORITY (IPOA).........3" INTERESTED PARTY CERTIFICATE OF URGENCY We, OMWANZ.A O} this Petition is urgent and “absolutely cannot wait because: TI and WAKESHO KIL. O, counsel on record for the Petitioner certify that 1. On 26° Mand, 2020 the 2" Respondent imposed an ideal, Megitinate and mproporionae 7:00pm to Yam curfew order throughout tertitory of Kenya. The Petitioner, exercising its statutory duty to protect and assist the public, challenges the curfew order as unconstitutional because it is blow ‘et and indefinite, and because itis ultra sires the Public Order Act. 2. ‘That the aforesaid curfew poses a great and imminent danger to the general health and safety of thousands of Kenyans, particularly the poor and vunerable members of the society as its is dis- proportionate and draconian in a free and democratic society 3. From 5:00PM on 27" March 2020 , the 1” Respondent (camming o inplement the cuyfaw one) ww leashed a campaign of tersor and violence against the publi, The police tear-gassed and violently ulted vulnerable persons like pregnant women, the elderly and the sickly. They also bludg- ‘coned providers of exempted essential services such as watchmen, supermarket workers, food P i 1p Page 1 of 36* °° 0002 truck deivers and medical personnel - on theit way to of from work. The police also recklessly horded lige crowds on the ground-contiary to WHO advice on social (istancing, Moreover, the 1" Respondent stopped the media from monitoring their movement and assaulted journalists covering the process % That the Chief Registrar of the Judiciary issued directives in consultation with the Chief Justice, ‘hich have had the effect of closing the courts completely ancl denying the public access to courts even in extreme and urgent eases of Uf and death instances which would a8 of necessity cequiee the intervention of the courts & The consttutionality of the eusfew order isa question of public inceest whose determination “absoluely cannot wait.” Otherwise, che police wil continue to violate Kenyans ight to fie ial, dlgnity and freedom from cruel and degrading treatment. The police will also continue to exac- erbate the spread of COVID 19 hence threatening the health and life of the whole population Farther, the unnecessary disruption of essential services is likely to forment social uncest. If any of that happer » the Petition will be tendered moot and the court would have wasted judicial authoriey Dated at Nairobi this 30" day of Movelr 2020 NCHOGU, OMWANZA & NYASIMI ADVOCATES FOR THE PETITIONER DRAWN AND FILED By: Neto, Otvana fe Nya’ Advocate, Hazina Towers, 6" Floor, Monrovia Sweesasaiabi, Loew Nabi overt coll ameanzaonbai@gnel co Page 2 of 36» 7096 REPUBLIC OF KENYA INTHE UGH COURT OF KENYA AT NAIROBI ONSTITt LA IM, IGHTS DI PETITION NO, ___ OF 2020 LAW SOCIETY OF KENYA. PETITIONER/APPLICANT -VERSI HILLARY MUTYAMBAI, INSPECTOR GENERAL NATIONAL POLICE SERV! ; z snl RESPONDENT. FRED MATIANGI, CABINET SECRETARY FOR INTERIOR AND “OORDINATION OF NATIONAL GOVER ATTORNEY GENERAL. THE HON. CHIEF JUSTICE. MUTAHI KAGWE, CABINE HEALTH... a ee eect 5" RESPONDENT 2 RESPONDENT 3" RESPONDENT 4" RESPONDENT -AND. KENYA NATIONAL COMMISSION ON HUMAN RIGHTS FIDA-KENYA. = INDEPENDENT POLICE OVi D PARTY TED PARTY, TED PARTY SIGHT AUTHORITY (POA) 3" INTERI NOTICE OF MOTION (Pursuant to Article 27, 28, 13,49, 50, 51, 53, 4 57, 88 of the Constitution, sections IA, 1B, 3A of the Civil Procedure Act, cap 21 Laws of Kenya, aud Constivution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013} TAKE NOTICE that this Honourable Court shall be moved on the «ess... day of 2020 at 9:00 ia the forenoon oF soon thereafier as the PETITIONER/APPLICANT may be heard on its application FOR ORDERS: 8) THAT this APPLICATION and the annexed PETITION be certified URGENT and one that ‘absolutely cannot wa ’ for resumption of regular court proceedings to commence: b) THAT Pencling hearing and determination of this APPLICATION, n CONSERVATORY ORDER be and is hereby issued suspending the Public Onder (Stale Curfew) Orden, 202 ative to b) above, pending the hearing of the APPLICATION and the PETTTION a CONSERVATORY ORDER be and is hereby issued: Page 3 of 36q (© _Estending the time of the stat of the curfew from 7 p.m to 10:00PM ‘or as the court may direct mmpelling the 1" Respondent, within 24 houes herewith, to publicize io newspapers of national circulation, and concurrently file in court for scrutiny, Guidelines on conduct of police officers enforcing the curfew ordes; (ii) Prohibiting the 1” Respondent from using unreasonable force in ene forcing the curfew order; and holding the 1* Respondent personally lable for unreasonable use of force in enforcement of the curfew onder against members of the public; &) Prohibiting the 1" Respondent from interfering with media coverage of the curfews and (©) Including the justice system and legal representation in the list of ex: sential services providers Gai) THAT pending the heating and detetmination of this APPLICATION and the annexed PETITION, the 4° Respondent, at, the ChieF Justice of the Republic of Kenya be ORDERED 1, infra, appoint Judges andl magistrates asthe case maybe, to hear exteemely urgent matters; THAT pending the hessing and determination this APPLICATION and the annesed PETITION, the 4* Respondent, to aif, the Chief Justice of the Republic of Kenya be ORDERED to, is ue Practice Directions on Video or Audio Heatings duting the Corona- ‘virus Paudemic, and issue ditections that proceedings are to be conducted wholly as video or audio proceedings and where it is not practicable for the hearing to be bioadkast in a coust building, the court may dizect that ehe hearing take place in private whete it is necessaty to do 0 t0 secure the proper administration of justice. THAT pending the heating and determination of this APPLICATION and the PEITTION, ‘an ORDER be and is hereby issued directing the 5 Respondent, fo wit the Cabinet Seczetary in Charge of Health to exercise his powers under section 36 of the Public Health Lt and all felevant legilastion, and issue proper guidelines for the curfew, quarantine and of/ containe ‘ment of COVID-19 Coronavitus; which Gudiclines specify, infer alia )) Testing kits: Numbered by ype, percentages by turnaround time or technology used eg Pint of care and how many testing kits have been delivered to various designated testing facilites, within the Republic of Kenya i) Facilities: Number of designated COVID-19 management facilites, distribution around the country, capacity to manage severe eases (number of beds, oxygen availablity), eapac Hy to manage ctitical cases (ICU capacity to serve cases of COVID-19, ventilator num- bers), laboratory capabilities eg, blood gas analysis, full metabolic screen and full « Page 4 of 36electrolyte sereen. (Gi) Health workers: Number trained in each designated COVID-19 facility by cadre, evidence of team-based approaches in COVID-19 facilities eg, number of ICU teams with mutse ‘general physicians and eritical care specialists, Number of health eare workers deployed in every county (@) Resources: Publication of allocated, issued and expended financial and non-financial se- sourees for COVID-19 responses; including resources from private, bilateral and multi, laceral sources, (©) Publication of previous and current COVID-19 response plans in newspapers of national circulation and Ministry of Health website. () Clarity on strategie goals of current approaches eg, isolation, quarantine and testing stat- ceies: For example, whether and why at risk populaions ate being urged to selfisolates why quarantined persons are not being offered te voluntary basis to all who have symproms as done in other progressive jutisdictions. In addition the 5" Respondent should provide 4) Information on the working conditions for persons providing essential health ser vices, including health care workers, staff in quarantine facilities, and home-based cate Providers. This should include updates on training provided; measures taken to miti- gate occupational safety and health tisks, insurance coverage; and avaibility of front- line healthcare worker shelters §) Information on how communities will be included in efforts to reduce health tisks, access care, and participate in prevention and treatment to slow down COVID-19 spread without undermining the critical role of biomedical and epidemiological inter- and why tests are not available on a ventions that have so far been implemented, © Aneutmal SMS platiorm that will extend to users beyond Safaricom subscribers: Com ‘munication is tilored to meet the needs of underserved populations including peo- ple with disabilities, 4) Priosits ©) That the information listed under this ORDER should be published in newspapers tion of information and communication needs of children and adolescents, of national citculation, ministey of health website and circulated in an easily accessible way 8) THAT in view of the circumstances, service of the APPLICATION and the PETITION herewith be allowed dhrough electronic means to wi, email and nbatpp, and the Court reg- istry does inform the affected Parties on the directions and orders issued through the same means. hy THAT the 1" and 2" Respondents to personally bear the costs of these proceedings. WHICH APPLICATION is founded on the following geoundst from On 26 March, 2020 the 2" Respondent imposed a Public Onder (State Carfow) Onder 7:00pm to 5:00am nationwide, Page 5 of 366 ‘The Petitioner, exercising its sttutory duty to protect and assist the publi, challenges the eurfew fonder as am ier. ilegitimate and anpropartionat, because its blanket in seojye and indefinite in length Further though the curfew order limits rights and bears penal consequences, it does not on its face state any reasons or rational for the curfew and the link between such legitimate aim and the curfew: The curfew order is also mina wns section 8 of the Public Order Act under which it was poxport cay issued as the corona virus case is a question of “public order”, but a “public health emer gency” exclusively governed by section 36 of the Public Health At. Purthes, contrary to section 8 of the Public Order Act, the curfew onder does not exprush provide {or written permits hence penalizing vulnerable persons and persons who venture out strictly for the purposes of peelorming an essential service, obtaining an essential good or servic, or seeking emergency, lifesaving or chronic medical atention. Instead, the curfew order subjects persons performing or seeking listed essential services such as medical personnel to arrest (or as witnessed in this case terror and violence) Besieh » Contrary to Articles 49s and 50 the curfew order omits legal representation from the list of exempted essential services yet those arrested for outing the curfew would invatably require legal representation, From 5:00PM on 27" March 2020, the 1" Respondent (claiming to implement the curfew order) Jaunched a campaign of terror and violence against the public ‘The police violently assaulted vulnerable persons like pregnant women, the sick and eldedy: They also bludgeoned providers of exempted essential services such as watchmen, supermarket work- ers food truck drivers and medical personnel - on their way to or from wor. ‘The police also recklessly horded laqge crowds on the ground ~ contrary to WHO adviee on socal distancing Besides, the 1* Respondent stopped the media from monitoring their movement and assaulted journalists covering the process Many Kenyans live from hand to mouth and have to work until benween 5:00 to 6:00PM. Kenya {does nor have an essential public transport system and it is impracticable. ‘This is exacerbated by the recent reduction in passenger numbers. It is therefore impracticable for these Kenyans to shop for essentials, find trasport and get home by 7:00PM. The Petitioner believes that the Responclents’ actions and omissions threatens the right to health Page 6 of 36 un56U7 and life and that conservatory orders are necessary to Preserve constitution! rights to fair trial, dignity, freedom from cruel and degrading treatment, life, heath and limb in the pendeney of the Application and Petition, 10, The constituonaly of the curfew order is a question of public interest whose determination “absolutely cannot wait” {i Without the timely intervention of this Honourable Cour, the police will continue to viclate ‘enyans’ sight to fair tal, dignity, freedom from eruel and degeading treatment and the right to health and life. The police will also continue to exacerbate the spread of COVID 49 hence threat ening the health, life and limb of the whole population. Further, the unnecessary disruption of essential services is likely to forment social unrest. If any of that happens, the Petition will be rendered moot and the court would have wasted judicial authority 1, A Petition; lke the present one, should not be rendered moot bectuse the court has the juris. ‘Hon, power and duty to preserve the subject matter of petitions under Atticle 23 of the Consti tution. AND WLIICH application is supported by the annexed affidavit of MERCY WAMBUA and by such other grounel reasons and arguments as may be advanced at the heating of the application, Dated at Nairobi this ow ewer Morty 2020 & NYASIMI THE PE'TTTIONER 0727-727249 [email protected] Page 7 of 36DR BY; Nehoga, Omwanza & Nyasimi Advocates, Hazina Towers, 6" Floor, Monrovia Street, Nairobi, P.O. Box 4045.00200 Nairobi 0727-727249 [email protected] Hilary Muryambai, Inspeetor General, National Police Service Talla Road, Jogoo House "A" 4th Floor P.O, Box 44249-00100 Nairobi 2541 20 2221969 nps@nationalpolis Fred Matiangi, Cabinet Secretary for Interior and Coordination of National Government Harambee House, Harambee Avenue P.O. Box 30510,00100 Nairobi +254-20-2227411 pe@interiongoke The Office of the Chief Justice Supzeime Court BuildingCiey Hall Way, Naieobi P.O. Box 300.1 ~ 00100, Nairobi [email protected] Independent Police Oversight Authority Ui Ngong Avenue, ACK Garden Annex P.O. Box 23035-00100 08 Attorney-General, Office of the Attorney General, Sheria House, Nairobi. 0711 9445555 /0732 529995, Nairobi P.O, Bos 40112 - 00100, communications @apeo.ke Page 8 of 36REPUBLIC OF KENYA L E HIGH COURT OF KENYA AT NAIROB! CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO.OF 2020 LAW SOCIETY OF KENYA, -PETITIONER VERSUS HILLARY MUTYAMBA\, INSPECTOR GENERAL NATIONAL POLICE SERVICE... aa i 1 RESPONDENT FRED MATIANGI, CABINET SECRETARY FOR INTERIOR AND. COORDINATION OF NATIONAL GOVERNMENT ATTORNEY GENERAL sn es ssesnmninsninen 3! RESPONDENT ‘THE HON. CHIBF JUSTICE, i seesssssecf RESPONDENT MUTAHI KAGWE SECRETARY FOR HEALTH. " aes +105! RESPONDENT -AND. KENYA NATIONAL COMMISSION ON HUMAN RIGHTS.......0...001" INTERESTED PARTY PIDA-KENY, : 2" INTERESTED PARTY INDEPENDENT POLIC! : OVERSIGHT AUTHORITY (IPO), PETITION ‘TOTHE HIGH COURT OF KENYA: The Law Society of Kenya, whose address of service is care of Nefngt, Onmunga e Nyatini Adocater, Hazina Towers, 6" Floor, Monrovia Street, Naitobi, P.O, Box 4045-00200, Nairobi +254-732312183 | 235137 /[email protected] petitions the High Court as follows: Parties: a. Introduction and P 1. This ulavful, legitimate and unproportionate «new ord dated 26! Mare, 2020. Petition concerns the 2" Respondent’ impostion and 1" Respondents enforcement of an ‘The Petitioner is a statutory body established by the Law Society of Kenya Act, 2014 with a stat- wory mandate under section 4 of the LSK Act, to inter alia, protect and assist the members of the Public in Kenya in matters relating to/ancillary or incidental to the Inw. ‘The Petitioner is obliged! to assist the Government and the coutts in matters relating to legislation, the administeation of justice and the practice of law in Kenya; uphold the Consstution of Kenya and advance the rule of law and the administration of justice. Page 9 of 366 J0i6 ‘The Petitioner buings this Petition on its own behalf, on behalf of its members and on behalf of the greater public, in public interest. The 1” Respondent is the Inspector General of the National Police Service under tile 245 of ‘te Constittian with command and overall responsibilty for the National Police Service and the officers im service thereunder. He is sued for the unlawful acts and omissions of police officers in enforcing theimpugned curfew order. The 2" Respondent is Cabinet Secretary within the menning of Anite 152 of the Consttaton/ Purdusm to the same provision and his oath of office he sworn to “obey, espect and uphold {the] Constitution of Kenya and all other laws of the Republic” and to “well and truly seeve the People and the Republic of Kenya in the Office of a Cabinet Secretary”, The 2" Respondent is sued, in his enpacity as Cabinet Secretary For Interior and National Coordination, for issuing an tunlawfl illepitimate and unproportionate curfew oer. ‘The Attorney General issued as principal legal adviser of the Government and the representative Of the national government in court proceedings, under Artie 156 of the Constitiion. He is also sued for neglecting to advice the 1" and 2"' Respondents on the unconstitutionality of their ace dons. ‘The 4 Respondent is the Chief Justice of the Republic of Kensa and President of the Supreme Court, Porsuant to Anise 161 (2) of the Consitation the 4 Respondent is designated the lead of the judiciary, with both statutory and constitutional mandate in organisation of the court sys- tem and in the administration of justice. The 5" Respondent is is a Cabinet Secretary within the meaning of Ariile 152 of the Constitution) Purdusmt to the same provision and his oath of office he sworn to “obey, respect and uphold {the] Constitution of Kenya and all other laws of the Republic” and to “well and truly serve the People and the Republic of Kenya in the Office of a Cabinet Secretary.” He is sued in his capacity as the Cabinet secretary for Health; on account of his inaction/dereliction of duty in relation to the outbreak/spread of the COVID-19 virus pandemic. ‘The 1 Interested Party (KNCHR) is « human rights Commission established by Antic 59 of the Cowstitation of Kerpa 2019 and administered through the Kaya National Commision on Hunan Right Page 10 of 3610, vali ‘lst 2041. The Interested Party isthe lead agency on promotion and protection of human rights The 2 Interested Pasty (Katiba Institute) i « duly registered constitutional research, policy and litigation institute established to further the implementation of the 2010 Constitution and ineul- cate a culture of constitutionalism in Kenya, The 3° Interested Party (IPOA) is an Authority established under scion 3 of the Lndspendent Policing Ovenight Authority Act 2011 and charged with civilian oversight of the members of the National Police Service. ‘The Interested Parties are enjoined in these proceedings ns having an identifiable intezest and legitimate stake Constitutional, International Law and Stauutory Underpinning to the Petition @® — Constination The Preamble of the Constintion of Kenya, 2070 espe s the commitment of Kenyans to nurturing and protecting the well-being of the individual, the family, communities and the nation as well ag their aspication for a government based on the essential values of human rights, socal justice and the rule of law. Under tile 2 of the Constittion of Kenya, 2010, the Constitution is the supreme lay of the land and it binds all pers and all State organs at both levels of government. In addition, no person may clim or exercise State authority except as authorised under the Constitution. Uhimately, any action or omission that is inconsistent with or in contravention of the Constitution is void to the extent of the inconsistency, Articles 2(5) and (6) of the Constitution also expressly import the general rules of international law and treaties ratified by Kenya as part of our lav Artide 3 of the Constitution behaves the Respondents, lke all Kenyans, to respect, uphold and defend the Constitution, Arie # further declares Kenya as a sovereign Republic and a multi- Party democratic State founded on the national values and principles of governance in iti 10 of the Constitution, Page 11 of 36o° ONI2 10, The national values and principles of governance in nich 10 bind all State organs, State officers, Public officers and all persons whenever any of them applies or interprets the Constitution or enacts applies ot interprets any la: The National values and principles of government pertinent ‘0 this petition include human dignity, social justice, human rights good governance, and accountabiliy, Ni. Following the enactment of the Constitution, ric 19(1) af the Canctuton designates the Bill of Nights as an integral par of Kenya's democratic sate and as the hamework for socal, economic and cultural policies. Further, Avice 192) indicates that the purpose of recognising and Protecting human rights and Fundamental freedoms isto preserve the dignity of individuals and Communities snd to promote social justice and the realisation of the potential of all human beings. 12 Porsuant to Avide 19(3) of the Constinton, the rights and fundamental feedoms ia the Bill of Fights, a) belong to exch individual and are nor granted by the Stat; (b) do not excade other as and fundamental freedoms notin the Bill of Rights, bu recognised or confeeted by Inv, “xcept to the extent that they are inconsistent with this Chapter, and (c) are subject only to the limitations contemplated in this Constitution 13. Antie 20() ofthe Constintion decrees thatthe Bill of Rights applies to all law and binds all State organs and all persons. Aric 20(2) on the other hand entitles every person to enjoy the tights and fundamental fecedoms inthe Bill of Rights tothe greatest extent consistent with the nature of the sight oF fundamental freedom 1A Anite 208) of the Cousiznton regsives this court 10 develop the law to the extent that it does not ae effect to aright or Fundamental freedom and to adopt the intexpretation that most favours the cafercenent of a right or fundarvental freedom. 15. Farther, in interpreting the Bill of Rights, Arce 20¢1) af the Causttnion vequres the cour, {ribunals or other authority t0 promote the values that underlie an open and democratic society based on luman dignity, equality, equity and feeedom; as well asthe sprit, purport and objeces of the Bill of Rights. 16, Arce 21(1) of the Constitution obligates the State and every State orga to olsen, respect, protet, Page 12 of 36an13 Prondte vec Jaf! We sights and fondamental freedoms in the Bill of Rights. Pursuant to nile 210) of the Constitution ll Stave organs and all public oftcess have the duty to address the needs Of vuheable grips within sais, including, women, older members of sociery persons with disabilities, children, youth, members of minority oF mazginalised communities, and members of Particular ethnie, religious or cultural communities. 17 Ante 2102) of the Cancinton vequives the State to take lepslatve, Policy and other measures, including the setting of standards, to achieve the progressive realisation oF the sights guaranteed tunder Article 13. ile 214) of the Constintion on the other band, obligates the state to enaet and ‘implement legislation to fulfil its international obligations in respect of human tights and fundamental freedoms, 18 etc 26(1) ofthe Constzmian exttes every person the tight to life 19 Artie 28 of the Canstttion estes every person to inberent lignity and the tight to have that dignity sespected and protected. 20. Ariel 29 of the Constitmion entitles every person to the right to feeedom and secusity of the petson, ‘hich includes the sight not to be treated in cruel, inhuman or degrading manner. 21 Atte 14 of the Constitution east every person: to the highest ateinable standard of health; to be fice from hunger, and to have adequate food of acceptable quality; to be feee from hunger, and to have adequate food of acceptable quits; to clean and safe water in adequate quantities and to social security, 22 Aide 5011) of the Cansttntion provides that every person has the tight to have any dispute that can be resolved by the application of law decided in frie and public hearing before a eoust om if appropriate, another independent and impactial tribunal or body. 2 Artie 5002) of the Constitution ensbrines the principle of legality; entting every accused person the ight toa fir eal, which includes the right not to be convicted for an actor omission that at {he tine itwas committed or omitted was not an offence in Kenya; ora crime under international law Page 13 of 36~ aid 2A Aide 58 of the Constintion governs states of emexgency, such as the Carona Virus Pandemic an stipulates the following in-built mechanisms for judicial and legislative over of conduct perpetrated by the Respondents: 6) @ ) © A state of ergency may be declaeed only under Article 132 (A(@) and only when— the State is threatened by war, invasion, general insurrection, disorder, natural disaster or ailer pubis emermenys and le decaraton is ecscary tat be crcumstaees fv whi the emergency AA declaration of a state of emergency, and yy deistation enacted or othe action taken in consequence of the declaration, shall be effective only prospective and for_uot longer than fourtien devs from the date of the declaration, Unless the National Assembly resolves to extend the declaration, ‘The N: ional Assembly may extend a declaration of a state of by resolution adopted — following a public debate in the National Assembly; and by the majoriti specified in clause (4); and for-nol Langer than two months ab time. ‘The first extension of the declaration of a state of emergency a supporting vote of at least rwothirds of all the of the National Assembly, and any subsequent extension requires a supporting vore of at east three-quarters of of the National Assembly all che members ‘The Supreme Court muy desde om the validity of ney; a declaration of a state of emery wa esiewsion of declaration of a state of emergency, aad any legislation enacted, ot other action taken, in consequence of a declaration of a state of emergency. Any legislation enacted in consequence of a declaration of a state of emergency sight to avoid the kind Page 14 of 3626. Jats ©) uptight or fade fedone in the Bil of Rights on to the extent at — ee ditation is strictly required by the emergeney and (i) the eioation is consistent with the Republic’ obligations under inter daw applicable toa sate of emergeney, and (>) shall noe take ec wut it published in the Gurette (A declaration of a state of emergency, or legislation enacted or other aetion taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act oF omission. “Ute 7 of the Consitnton claites that Avthority assigned to State officers like the Respondents (a) isa public trust to be exercised in a manner that— {@ is consistent with the purposes and abjects of this Constitution; (demonstrates respect fr the people, (itl) brings honone tothe mation avd dignity to the ofce ane Gv) promotes public confidence in the integrity of the offer avd (©) vests in the State officer the responsibility to serve the people, rather than the power to rule them, Avie 129 of the Constitution provides that executive authority derives from the people of Kenya and must be exercised in accordance with the Constitution. Executive authority must also be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit, Further, Arte 153 (1a) of the Constitution specifically requites Cabinet Secretaries to act in accordance with the Constitution, “Arte 159 ofthe Cousttnton decrees that judicial authority is detived from the people, and ve: in courts and tribunals established by or under the Constitution, Courts and tribunals in exercise of judicial authority must be guided by the following principles (@) uate stall be done teal ierespctve of stats Page 15 of 3629, 30. 31 ® justice shall not be delayed, © alternative forms of dispute resolution including reconciliation, mediation, arbiteaion and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); @ justice shall be administered without undue regard to procedural technicalities; and © the purpose aud priniphes of this Constitution shall be protected cand promoted. Artils 241 of the Constitution specifies the objects and functions of the National Police Service shall: (@) sitive for the highest standards of profetionslico and dicpline among its mem (b) prevent corruption and promote and practice teanspar- ency and accountability, (© comply with constitional standards of human rights and finda. ected freedoms (d) train staff to the highest possible standards of compe- tence and integrity and to respect human tights and fun- damental freedoms and dignity; and (© foster ancl promote relationships with the broader society (ii) International Law In terms of Artice 2(6) of she Constitution, Kenya is state party to a raft of intemational treaties which, govern the declaration of states of emergency and for protection of the vulnerable groups: ICCPR Article of 4 of the Tnternational Covenant on Gil and Political Rights provides: “In time of public comergency which threatens the ie of the nation and abe existence of which is ofcially proclaimed, the States Pasties to the present Covenant imay take measures derogating from their obligations under the present Page 16 of 3633. 36 Covenant /0 i tent sity aeqnived by the exigencies of the sitnation, provided tha sch measures ave wat iacousstent with thei other oblvations under international 4aeand do notizwolve discrimination solely on the ground of race, colour, sex, language, religion or social origin, the ICCPR” The Covenant guarantees all persons deprived of theie liberty the right to be treated with human- ity and with respect for the inherent dignity of the human peeson. UDHR ¥ of the Univeral Declaration of Vluman Right, 1948 entitles every person to the right to a Article vlaudard of tring adequate for the health and well-being of himself and of his family including medical care and necessary sovial servis IESCR Artite 11 of th International Covenant on Economic, Sovial and Caltaral Rights recognizes: “te right of eneryone to an adequate standard of ling for bimself and bis Jamiby, including adequate food, clothing and housing, and to the con- tinuous improvement of living conditions. The States Patties will take appropriate steps to ensure the realization of this tight, rec- ‘ognizing to this effect the essential importance of international co-operation based on Fece consent?” Similarly, tice 9 recognizes the right of everyone to social security, including social insurance. additionally, Arde 12 recognizes the right of everyone to enjoy the highest attainable standard of physical and mental health. Article 16 of the African Charter on Hannan and Peoples’ Rights, 1981 siento right and consequent state obligation: “every individual shall have the right to enjoy the best attainable state of physical and mental health” and State Pasties to the Charter commit 10 take necessary mea tect te health of their people and fo ensure dhat they rectve medical attention when they Page 17 of 3637, The following statutes are relevant to the faets in issues National Pale Service let, 2001 Seaton 19 gf the Ae provides that, where a police officer is authorized by Inv 0 use force, the officer shall do so in compliance with che guidelines set out in the Sisth Schedule Seton 3 of the Fifth Scbedule on Rates of the Arrest subjects the use of force in accotdance with the Sixth Scbedute, which in tum provides LA patie afi shall abe atta wie von-tokad meons fe aud fore only be xnav when non-eatet means ae ingle or without any prune of achieving the ited est 2% Tie fe usd hall be proportional to te abjtoe to be achewd. the src uss of the afte, and the mvivtance of the person against whom ie ie ase. cud only t0 the extent necessary mbile adbering to tbe provisions of Low aud the Standing Orders 3. When the use of force results in injusies— {a) hepatic aber preset shal prone mil asitaase indicted ce wakes then are good reasons, flag ta de fle: amd tt shall nosis ies ar close fhiemdls of the iyjnre fected pers A police officer who uses any form of force shall immediately, report to the officers" superior explaining the circumstances that necessited the use of force and the supervisor shall judge the righefulness and decide on the next step, subject to these regula- tions 5: Anyuseof force thatleals to death, serious injury and other prave consequences shall be reported immediately by the officer in charge o another direct superior of the person who eaused the death or injury, to the Independent Police Oversight Authority who shall investigate the case 6 The Tnspector-Genesal shall not be preciuded by virtue of para- graph (5) from conducting investigations into the matter 7. A police officer who makes a report to the Independent Police Oversight Authority in accordance with parageaph (5) shall— Page 18 of 36@ 9. 1 ) ® © BI. Section 95 of the and Seeure the scene of the act for purposes of investigations notify the next of kin, et relative or faend of the death or injury as soon as reasonably practical Itshall be a disciplinary offence fora police officer to fail to report tions. in accordance with these reg An officer shall not tamper ot otherwise damage any evidence from the scene of the act. 4 Police officer in uniform shall at all times affix a nametag or ‘dentifiable Service number ina clearly visible paet of the uniform Following the orders of a superior is no excuse for unlawful use of force, The Cabinet Sectetary responsible for Internal Security and the Inspector-Genetal shall make regulations for giving further direc- tion on the lawful use of force, and the regulations all include, among other things— a list of layefual means to use force; training requirements to be allowed to use these means; Procedures for reporting the usc of the menas of fore, inlicating whether the use of such means was necessary oF not “lt forbids police officers from subjecting any inhuman or degeading treatment, siz w Q 3 {e shall be unlawful for a police officer to subjcet my person to orture of other cruel, inhuman or degrading treatment. ' police officer who subjects a person to torture commits a cxim- inal offence and shall be liable on conviction to imprisonment for 4 term not exceeding twenty five years. A police officer who subjects a person to cruel, inhuman or de- grading treatment commits a criminal offence andis liable on con. ‘iction to imprisonment fora term not exceeding fifteen years 242 fic Healt Mt, Cap person to torture or other cruel, Page 19 of 3610. 4 ang The long title of the Act indicates that the Act is meant “to make provision for securing and maintaining, health” Section 36 of the Aris comprehensive Code on prevention of disease: “Rules for prevention of disease Whenever any part of Kenya appears to be threatened by any formidable epider + endemic or infectious disease, the Minister may make rules for all or any of the following puzposes, namely— @ © © @ (a) @ 0 the speedy interment of the dead house 10 house visitation: the provision of medical aid! and accommodation, the promotion of cleansing, ventilation and disinfection and guatding against the spread of disease; preventing amy person from having any inftted area without undergoing all orany of the following, natn, medical examination, disinfection, inocula. tion, ucination or reracination and passing a specified period in an obsee abi. camp or station, the formation of hospitals and observation camps ot stations, and placing therein persons who are suffering from or have been in contact with persons suffering from infectious disease; the destruction or disinfection of buildings, furniture, goods or other art les, which have been used by persons suffering from infectious disease, or which ate likely to spread the infection; the removal of persons who ate suffering from an infectious dis- ease and persons who have been in contact with such persons; the removal of corpses; the destruction of rats, the means and precautions to be taken on shore of on board vessels for preventing them passing from ves- sels to the shore or from the shore to vessels, and the better pre- vention of the danger of spreading infeetion by rats; the regulation of hospitals used for the reception of persons suf fering from an infectious disease ancl of observation camps and stations; Page 20 of 36 a 242, k) the removal and disinfection of arti! 3 which have been exposed +0 infections (prohibiting any person living in any building of using any building for any other purposes whatsoever, if in the opinion of the med- ical officer of health any such use is Hable 10 cause the spread of any infectious disease; and any rule made under this paragcaph may give the health officer or a medical officer of health power to prescribe the conditions on wich such a building may be used: (im) anyother purpose, whether of the same kind or nature as the foregoing oF nos, Anaing for its objet the preweution, control or suppression of infections di and gy by ender declare all rau of the rues so nade tobe i inany area iit onder. and such ave wed an infested arca, and to apply to any vessels, whether on inland waters or on atms or parts of the sea n the testitorial jurisdiction of Kenya.” Sesion 37 of the Ac enteusts execution of the rules to the “health authotity” and” medical officer of health” and not the police, rie The health authority of any area within which or part of which any rules made under section 36 of this Act are in force shall do and provide all such ts, res and things as gy be messy for mitigating any such disease, or aiding ‘inthe execution of sash rites, ot for executing the same, as the case may re- quite; and the Avalth anthority or the medical afer of health a to time diel any proseention or tegl proceediqgs fora in repo! of the wilful viola elec of ny such vale ‘The Act defines “medical officer of health” to mean: (a) the Dizector-General for health; and (b) in relation to the area of any municipality, the duly appointed medical officer of health of the ‘municipality including a public officer seconded by the Government to hold such oftice; and (¢) in relation to any other atea a medical officer of health appointed by the Minister for that aren, ‘The definition excludes the police. Page 21 of 3644, The 2 Respondent is not the competent Cabinet Secretary under the Act because he is not “responsible for matters relating to Health,” ‘The Publ in Kenya, Public Onder Act, Cap 56 le Order Aet isan -\ct meant “to make provision for the maintenance of public ordee* Seaton 8 vegulates curfews to the following conditions: Curfew orders (}) The Cabinet Seecetaty, on the advice of the Inspector. General of QO t the National Police Service may, if he considers it necessaey in the interests of public onder so to do, by order (hereinafter refereed to as 4 curfew order) dicect that, within such atea and during such houcs ‘may be specified in the curfew ordes, every person, oF, a8 the case may be, every member of any class off persons specified in the curfew order, shall, expt mder and én aucordance with the tonas ctu sonltions of writen pent grated ty an ator a person spied ‘athe crf order, emain indoors in the premises at which he nor tnully resides, or at such other premises as may’ be authorised by or under the curfew order, Il be a condition of every permit granted under subsection (V) of his section: (@) that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry’a light visible ava distance of twenty-five feet. () Subject to paragtaph (a) of this subsection, a permit under sub- section (1) of this section may be granted subject to such condi- tions, to be specified in the permit, as the authority or person {granting it may think fit 3) curfew order shall be published in such manner as the authority ‘making it may think sufficient to bring it to the notice of all per- sons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified Page 22 of 36WADS therein, and shall remain in force for the petiod specified therein (oF until earlice xescinded by the same authority or by the Minister as hereinafter provided: What wo ut order wich imposes cme operating daring some ten cansecative boars of ght chal! aman in fore fox more than eee es and oc enteric pass acre operating daring ay sera af consctive bans of deli shal remain i ore for ore than seven dys Prov FACTS He On 26° Marc, 2020 the 2” Respondent issued the Prile Onder (State Cagfen) Onde, 2020 by which fers. curfew from 7PM to SAM wns declared throughout the terstory of Kenya. The Order Purported to exermpt essential services including: medieal professionals and health workers: food s licen transporter cd banks; and supermarkets #5. On 27" Mech 2020, from 5:00PM, the 1" Responclen, through police officers serving under him (who claimed to implement the cusfew order) hunched a campaign of terror and violence against the public 16. The police violently assaulted vulnerable persons lke pregnant women. ‘They also bludgeoned Providers of exempted essential services such as watchmen, supermarket workets, food track rivers and medical personnel on their way to, oF from work, The police also recklessly horded large crowds on the ground — contrary to WHO advice on social distancing, Besides, the 1* Ite. Spondent stopped the media from monitoring theie movement and assaulted journalists cov ting the process. 7. 82.7% of Kenyans work in the informal sector and a number lve from hand to mouth and have *e work until berween 5:00 to GODPM. On the other hand, Kenya docs not have an essential Public transport system. This is exacesbated by the recent Goverment Diteetives on reduction of passenger numbers in Public Service Vehicles; ina view to implement social distancing, Iris therefore impracticable for these Ke 7.00PM ‘ans to shop for essentials, find trasport and get home by d. Particulars of Unconstitutionality Page 23 of 360924 "8 The curfew onder is lia, legitimate ancl mprportionat because its bank in scope and indie 1n length ‘8, First though the curfew order limits rights and bears penal consequences, there is no indication OF the rationale for the curfew on the face of the eusfew order. By dint of Article 24 of the Constitution, the Respondents bear the duty of proving that the limitations are ‘reasonable and PeMHOe wan spew and dros sats bad on human dignity, egy aed freed avd kang into account the factors listed therein, 5H. Second, the curfew order does not demonstrate what dgimuie pul: leath or other interest it seeks to achieve and link between that legitimate aim and the eurtew order 31. Third, a curfew order which is lake in scope and indefiuit in length is not the least restrictive ‘measure. There can be no reason why a state of emergency and a daytime curfew are both limited te dutation while the 7PM to SPM curfew imposed by the 2% Respondent endures in perpetuity 52 Asa result, the curfew order prima face fails the three pact test under Iie 249 he Constitution ‘equiring it co be: by lav in pursuit of a legitimate aim and proportionate. The Respondents have the option of declaring a stare of emergency because a sate of emergency is subject to legislative and judicial oversight under rail 58 of the Constitution. Also, the curfew order ie ala ries section 8 of the Pubic Oder Aet unde which it was purportedly ‘issued. Corona Virus Pandemicis not a ‘trime” ox a “public odes" question, but a ‘public healt emer seno”" exclusively governed by sition 36 of the Public Health Act (meant to make provision For se- curing and maintaining health’). M4 Issuing @ curfew order under ston 8 of the Prblc One lit (an et to make provision for the ‘maintenance of public order) as opposed to Rules under section 36 of the Public Health lt (aa, Act fo secure and maintain health) has the pwrpase and effet of subjecting medical professionals and health workers 10 che digection and control of untrained police ofticers at great risk to public health. Indeed, medical professionals and health workers on their way to oF from work were amongst those teargassed and assaulted by the police, Farther, while scion 8 of the Public Onder ct contemplates exemption of persons “in aordance init the teres ad ouitions of a writen pera granted bya ethorty ax peron speed ia te cufowo Page 24 of 3656. 60. on 62, 63, the curfew order does not specify the authority or person from whom exemptions may be ob- tained. AS a result of this omission, the cusfew order penalizes vulnerable persons and persons who venture out strietly for the purposes of performing an essential service, obtaining an essential good or service, or seeking emergency, lifesaving or chronic medical attention. Instead, the curfew ‘order exposes persons performing or seeking listed essential services such as medical personnel to arrest (or as witnessed in this ease terror and violence). Besides, it makes no constitutional sense to exempt essential services like “food retailers” “phar macies”” and “supermarkets” when public transport enabling the public to access these essential services is not included in the exemptions. That Kenyay itled (© the highest attainable standards of health under article 43 of the custintion, Ax unmeasured approach is a danger to the public health of the Republic The primary objective of the a seiemific sesponse to the COVID-19 outbreak remains stopping the human-to-human transmission of the virus, and eating for those affected. For instance, WHO has called on countries to use this unique window of opportunity to act immediately 1o rapidly detect, diagnose, and prevent the further spread of the virus, towards this objective, WHO has published guidelines on country preparedness. This is not clear from the either the inymgued enim Onderof any disective from the Ministey of Health or the 5! Respondent Besides, the aufew order violates the tights of arrested persons under Article 49 of the Cansitution as well as the right to fhit hearing and right to fair trial under Article 50 of the Constitution as it ‘excludes legal representation fom the list of exempted essential seevices even though those ar- rested during the curfew would require legal representation. ‘On account of the 2" Respondent’ acts, persons arrested or detained on purported enforcement of the impugned curfew Order have no access to legal representation. Besides, tear gassing, beating and unreisonable use of force against the public is a violation of the right to dignity under Arsick 28 of te Constitution as well as the right to secutity of the person and freedom from crucl and degrading treatment under Article 29 of the Constitution. Page 25 of 3664 IIR Reliefs and Cost Order Asa consequence of which your humble Petitioner pleads the Court for orders that: \ DECLARATION be and is hereby issued that the Public Onder (State Cunfim) Onde, 2020 dated 26% Mav 20 is unconstitutional and of no legal effect. A DECLARATION be and is hereby issued! @ that the 1” Respondent's unreasonable use of force in enforcing the curfew is unconsti- tutional and; (i) holding the 1" Respondent personaly liable for the unteasonable use of force in enforee- ment of the curfew order. yans and every other pers consequently, an ORDE! ION be and is hereby issued that pursuant to artile-43 of the Canstition, Ken sn are entitled to the highest attainable standaed! of health and is hereby issued directing the Cabinet Seezetaty in Charge of Health to exercise his powers under section 36 of the Public Health Act, and issue proper guidelines for curfew, quarantine, containment of COVID-19 Coronavirus that alia: specifies inter ‘Testing kits: Numbered by type, percentages by turnaround time or technology have been delivered to various used eg, point of care and how many testing ki desi Facilities: Number of designated COVID-19 management facilities, distribution ated testing facilities, within the Republic of Kenya around the country, eapacity to manage severe cases (number of beds, oxygen availability), capacity (0 manage critical cases (ICL capacity to serve cases of COVID-19, ventilator numbers), laboratory eapabilities eg. blood gas analysis, full metabolic screen and full electrolyte screen. Health workers: Number tenined in cach designated COVID-19 facility by cadre, ities eg. number of ICU evidlence of team-based approaches in COVID-19 fa teams with nurses, general physicians and critical care specialists, Number of health care workers deployed in every county Resources: Publication of allocated, issued and expended financial and non-fi- nancial resousces for COVID-19 responses, Including resources from private, bi- lateral and multilateral sources Publication of previous and current COVID-19 response plans in newspapers of Page 26 of 36J927 ational circulation and ministey of health website *+ Clarity on strategic ols of eureent approaches, eg. isolation, quarantine and test int Stategies: For example, whether and why at risk populations are being urged ‘oselfisolte; why quarantined persons are not being offered tests; and why tests are not available on a voluntary basis to all who have symptoms ns done in other progressive jurisdictions. vi Information on the working conditions for persons providing essential health ser- “tees, including health care workers, staff in quarantine facilities, and home-based s taken ‘o mitigate occupational safety and health risks, insurance coverage; and avalabil sare providers. This should include updates on training provided: meas ity of frontline healthcare worker shelters wil Taformation on how communities will be inclided in efforts to reduce health ‘asks, access care, and participate in prevention and treatment t0 slow down COVID-19 spread without undermining the extical role of biomedical and epie emiological interventions that have so far been implemented. ix The Ministry of Health utilises a neutral SMS platform that will extend to users outside of Saiaticom. Communication is tailored to meet the needs of under. served populations, including people with disabilities % Proritise the information and communication needs of children and adolescents, Mt The ioformation listed wader this ORDER should be published in newspapers of national circulation, ministry of health website and circulated in an exilyac- cessibsle way: (A DECLARATION be and is hereby issued be and is hereby issued that access to justice by “Kenyans or the public vide the courts, the institution of the judiciary and its processes, even in instances of public curfews or a state of emergency is necessary in a free and democratic society: (9 ADECLARATION be and hereby issued that, even in eases of a state of emergency or Public curfews, the courts must opernte so as to check against any excesses by the executive or any Invfl body and teinforce the principles that there is no temporary suspension of the rule of In % nor docs it authorize those in power to actin disregard of the principle of legality by whieh they are bound at all times, (Any other relict that this Hlonourable Court may deem fit an! just to grant inthe interests Page 27 of 36of justice and/or thar may become ings, ising aH Date day of NCHOGU, OMWANZA & LOR THE PETITIONER ADVOCA’ DRAWN AND FILE! Nehogu, Omwanza & N: Hazina Towers, 6" Floor, Monrovia Street, Nairobi., P.O. Box 4045-00200 simi Advocates, Nair 0727-727249 [email protected] ‘LO BE SERVED Upon Hilary Mutyambai, Luspector General, National Police Service Taifa Road, Jogoo House "A" 4th Floor P.O, Box 44249-00100 Nairobi 20 2921969 aps@nationalpalice go.ke Fred Matiangi, Cabinet Secretary for Toterior and Coosdination of National Government Harambee House, Harambee Avenue P.O, Box 30510,00100 Nairobi, +254-20-2297411 [email protected] ‘The Office of the Chief Justice Supreme Coust BuildingCity Hall Way, Nairobi P.O, Bos 30M — 00100, Nairobi shiciustice@udiciary0 ke Independent Police Oversight Authority 1 Ngong Avenue, ACK Garden Annex P.0. Box 23035.00100 Naiobi (020 490 6000 (0792532626 inga@iporgoke The COSTS of this Peto be personally paid by the 1* pparent and necessary in the course of these proceed and 2" Respondents. CO.Ops NYASIMI 2020 Attorney-General, Office of the Attorney General, Sheria House, Nairobi. OTL 9445555 /0732 529995 Nairobi P.O. Bos 40112 ~ 00100, communications @ageake Page 28 of 36REPUBLIC OF KENYA INTHE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO, OF 2020 LAW SOCIETY OF KENYA... PETIVIONE! / APPLICANT VERSUS. HILLARY MUTYAMBAL, INSPECTOR GENERAL NATIONAL POLICE SERVICE FRED MATIANGI, CABINET SECRI COORDINATION OF NATIONAL GOVERNMENT. ATTORNEY GENERAL, ‘THE HON. CHIEF JUSTICE. 7 MUTAHT KAGWE, CABINET SECRETARY FOR HEALTH a 5® RESPONDENT 1"RESPONDENT 2° RESPONDENT PONDENT ESPONDENT AND. SION ON HUMAN RIGHTS...........001 INTERESTED PARTY A-KENYA.. INTERESTED PARTY INDEPENDENT POLICE OVERSIGHT AUTHORITY (IPOA).........3" INTERESTED PARTY. DAVITIN SUPPORT OF PETITION AND APPLICATION FOR CONSERVATORY. ORDERS. 1, MERCY WAMBUA. citizen of the Republic of Keaya and resident of Naitobi and of P.O. Bos 72219-00200 Nairobi do solemnly make oath and state as follows 1. Being the Petitioner's Chief Executive Otlicer, and being familiar with the facts hereof, Lam come Petent to swear this affidavit in support of the Petition and Notice of Motion Application for Conservatory eeliets 1 swear this Affidavit in support of the annexed Petition and Application. 3 On 26° Marth, 2020 the 2" Respondent issued the Public One (State Curfew) Orde, 2020 by which terms a curfew was declared to be in foree from trom 7PM to SAM throughout the territory of ind Kenya. The Order purported to exempt essential services including: medical professiona health workers; food teansporters: licensed bunks; and supermadtets./ arene «copy of the Priilic Order (State Curfew) Order, 2020 mared as MW 4 On 31° of _Jeunary 2020, WHO declated COVID 19 public health emergency of intecnational Page 29 of 366 10, 11 oO aS the Public Order Act s colonial relic of a statute enacted dusing the state of ‘emergency, Prior 10 2014 the Act was last amended in 1965, Ir was meant to be punitive against nates, Subsequently, ‘twas used during the tribal clashes of 1992 and 1997 and other intermintent occasions ‘That verily believe thatthe fist question, thar the honourable eoust would need to address is ‘whether the corona vieus outbreak isa "public ontr” question Falling und diy Publis Onder ora “pric watts” question exclusively governed by sedion 36 of the Public Heal et IE the coronaviryus pandemic wns found to be a "public beat" conceen the impugned Cusfew Order would be ex faci illegal a there would be no power to issue it under the Public Order Act. The Government, uurough the office of the Attorney General has not proposed a Coronnvitus Emergency Bill Neither has Paciament convened to discuss this extreme public health emergency 80 as to address it through legislation, ‘That Tam aware through personal knowledge that in Law Sanity of Kea » Inpetor General Kenya 3 others (2015) eKLR (Lamu Curfew Casi) the High Court held that a curfew National Police Seruee SS meant fo enable security personne! (o move into an area affected by crime leading to public disorder and further that a curfew is a temporary stop gap mensure intended to enable the security officers operate smoodhly ancl calm the situation). See also Musins fr Haman Rigs (MU URI) & nH of Pali & 2 others 2014) ¢KLR (holding that a curfew is one of police 4 ollers v Inspector G devices for prevention and combat of crime) That Pale Order (State Curfew) Onter, 2020, at face value, does not state the reasons for the curfew: Because of the consequence of the penal outcome of disobeying the cutfew, the same must be spelt out in law - aullum ctimen, AS the curfew declared by the 2" Respondent limits rights, ie must pursue a legitimate aim to pass the Article 24 of the Constitution test. hist ston 8 of the Pali: Onder Act allows one 10 geta written pecmit from an authority specified tn the curfew order, the impugned curfew Order does not speci from whom the written permit 'sto be obtained. The results that even providers of essential services such as doctors or the taxi Page 30 of 3616, 7 20, 434 divers taking them home or persous out shopping for food or medicine are acres od alongside everyone else, COVID patients heading to a hospital for tests, pregnant women due for urgent ‘medical attention, sick people due for attention at medical facilites will get atrested too. The impugned curfew order is issued for unspecified rensons ands limitless in duration. There is no proof that itis proportionate or isthe least resttctive measure available (even if the reasons fos the curfew had been stated). See LSK Lamm Curfon Case (ling that aenrfow isa sop Sop measure and quashing the curfew for lack of proportionality), That Lam aware of my own knowledge that in the case of National Super Aliana (NASA) Kenya e Cabinet Seertary for Interior and Co-rdenaton of National Government & 3 vters [20177 KLR the cout held thata three momib sight time curfew imposed because of tercorist attacks was proportionate; but asserting that a night time curfew eannot be indefinice in length, Thar state of emergency provisions under arte 58 of he onstimion have in built legislative and Iudicial oversight mechanisms. The constitution deliberately limits the petiod for declaration of state of emergency incl limits the length of extensions by Parliament. It also specifies the content of emergeney legislation under antine 58(6). Ante 5807) of the comitntin does not shield the stte from unlawfl acts ot omisions dating a state of emergency Tn the NASA case, the court observed that there is no reason why daylight curfews and state of emergency are both limited while night time curfews are unlimited The Kenya National Human Rights Commission and FIDA-Kenya issued public statements that deprecated and condemmed the issue of police brutality and violence that was meted against the smembers of the publi, I anes a cy of the statements and mark them ax MW-2a and MW2b respective ‘That there are several documented in: ces of police harassment, excesses and brutality against the media and accredited reporters, who are listed as essential services provides in the impugned curfew order. annex herewith copies ofeeral media rports] and publications that attest othe same and marke them as MIP-3, Page 31 of 36J932 On 27" March 2020, from 5:00PM, the 1" Respondent (claiming to implement the curfew order) thunched a campaign of terror and violence against the public: "he police violently assaulted vulnerable persons eg, pregnant women. They also bludgeoned pro- viders of catchmen, -mpted essential services such as w supermarket workers, food truck drivers and medical pessonnel - on theie way to oF from work The police also recklessly horded large crowds on the ground — contemry to WHO adviee on social ctstancing, Besides, the 1* Respondent stopped the media from monitoring their movement and assaulted journalists covering the process 82.7% OF Kenyans work in the informal sector; and a large number live from hand to mouth and have to work until between 5:00 to 6:00PM. On the other hand, Kenya does not have an essential public transport system. This is exacerbated by the recent Government Directives on reduction of passenger numbers in Public Service Vehi- les; in a view to implement social distancing. It is therefore impracticable for these Kenyans to les ve their workplaces, shop for essentials, find trasport and get home by 7:00PM. ‘That approximately 1.5 million people in Nairobi live in informal settlements, The residents in these areas live under deplorable conditions with lack of the most basic needs and social amenities and face mult-dimensional challenges which require multi-dimensional interventions such as clean ds "iter supply andl improved sanitation, energy, solid waste management, housing, schools, and hos Pitals J armex herewith and mark as MME a seme study that docement the munter of people in informal setenents in Niel (thi document came aeesed aap satiate et peble Meal 50392060 Uudestanting the Grassmats Dynamics of Slums iv Nairobi The Dy Aaa of Kibora Salma Settlements cinions dow noc) ‘The impugned curfew order is also ultea vires ction 8 of the Public Order Act under which it was Purported issued as the corona virus ease is NOT a question of “public order” but a “public health emergency” exclusively governed by setian 36 of the Public Health le. Further, contrary to seton 8 of tbe Publi Order ct, the curfew order does not expressly provide for weitten pees ts hence penalizing vulnerable persons and persons who ventute out strictly for the Purposes of performing an essential serviee, obtaining an essential good or service, oF seeking Page 32 of 3629 30, 33. uM. J933 lifesaving oF chronic medical attention. Instend, the curfew order subjects persons per- ‘orming or seeking listed essential services such us medical personnel to attest (or as witnessed in this ease terror and violence) Contrary to luides 19 and 50 of the Cansttation, the cusfew order omits legal representation fom the list of exempted essential services yer those atrested for Hloucing the curfew would invariably requize legal representation Wall and matatws, privately-operated paratiansit, account for 89% of all adult commuting in aban, Kenya a8 stared in an article riled, Comating in Urban Keny Unpacking Travel Demand dn Lange and Sinall Kenyan Cities. J attach beewith a wentific stay thet decent survey and ruaber of Pepe wins pli: trspor and mark at as IWS. dhe ace can be found at the International Trans sction Journal of tsineesing, Management, & Applied Sciences & Technologies and can also be accessed at fle ///Cx/Users/ Admin Downloads/sustainability-11-038239%90¢1) sn my That the greater public interest and concetn in this matter is futher butttessed bya statement of 97 health celated NGOS that suggests an advisory and outline rights based menautes to curb the spread of Covid-19. 1 annex: it herewith and mark it as “MI ‘The Petitioner believes that the Respondents’ actions and omissio thzcaten the right to health tind life and that conservatory orders aren sty to preserve constitution! rights to life, livel hood, health, fate wal dignity, feecom from cruel and degrading treatment in the pendeney of the Application and Peition ‘That Kenyans are entitled to the highest atainable standards of health under article 43 of the constitution, The primary objective of a scientific response to the COVID-19 outbreak remains stopping the human-to-human tansinission of the virus, and caring for those affected. For instance, WHO has called on countties to use this unique window of opportunity to act immediately to rapidly detect, diagnose, and prevent the farther spread of te virus, towards this objective, WHO has published Buidelines on country preparedness, mhich { now attach and anne as “MIV7." (the guidelines cam be cessed a esl Lanse juth doo dn sontee eoranceinsel cui 19-sprp ame sue nes 2ainsn = 8.1438 4 The consttatonality of the curiew order is a question of public interest whose determination Page 33 of 3634. ‘The primary objective of a scientific response to the COVID-19 outbreak remains stopping the human-to-human transmission of the virus, and caring for those affected, For instance, WHO has called on countries to use this unique window of opportunity to act immediately to rapidly detect, diagnose, and prevent the further spread of the virus, towards this objective, WHO has published guidelines on country preparedness, which I now attach and annex as ‘MIW7-7." (be guidelines a be avcessed attic! Lm wha int! docs! default source! sornuavticuse! covid-19-sprp-unet. guidelines pat 2 L3d8 +, 35, ‘The constitutionality of the curfew order is a question of public interest whose determination “absolutely cannot wait”, 36. Without the timely intervention of this Court and issue of Conservatory reliefs, the police will continue to violate Kenyans’ sight to fair tial, dignity, freedom from cruel and degrading treat- ment and the right to health and life. The police will also continue to exacerbate the spread of COVID-19 hence threatening the health and life of the whole population. Further, the unneces- sary disruption of essential services is likely to forment social unrest. If any of that happens, the Petition will be rendered moot and the court would have wasted judicial authority. 37. I depose this affidavit in support of the Application and Petition from facts within my know!- cedge save for the information the sources whereof are otherwise disclosed. I believe the affidavit to be in accordance with the Oaths and Statutory Declarations Act, Cap 20. fe wom at Nairobi this 30 day of Merch of 2020 by: 5 ens DERON! MERCY WAMBUA, ) ‘ENT Nehogu, Omwanza & Nyasimi Advocates, Hazina Towers, 6" Floor, Monrovia Street, Nairobi, P.O. Bos 4045-00200 Nairobi 0727-727249omwanza.ombai(@emailcom‘TO BE SERVED UPON: Hilary Mutyambai, Inspector General, National Police Service Taita Road, Jogoo House "A" 4th Floor P.O. Box 44249-00100 Nairobi 254 20 2921969 pps@nationalpolice woke Attorney-General, Fred Matiangi, Office of the Attorney General, Cabinet Secretary for Interior and Shetin House, Nairobi jon of National Government 0711 9443555/0732 529995 Harambee House, Harambee Avenue Nairobi P.O. Box 30510,00100 Nairoby, P.O, Box 40112 — 00100, 1 ps@ineriorgake communications@ay. go ke The Office of the Chief Justice Supreme Court BuildingCity Hall Way, Nairobi P.O, Box 30041 — 00100, Nairobi shietiustice@iusiciars gake Independent Police Oversight Authority 1 Ngong Avenue, ACK Garden Annex P.O, Box 23033-00100 Nairobi 020 490 6000/0792 infa@ipoayake 52626 Page 35 of 36SPECIAL ISSUE $521 2020 Kenya Gazette Supplement No Jo IS) (Legistative Sujplement LEGAL Notice No. 35 2ennG, THE VALUE ADDED TAX ACT, 2013 (No. 38.04 Sceretary for the National Jeder THE VALUE ADDED TAX (AMENDMENT OF THE RATE OF TAX) ORDER, 2020 1. This Order may be cited as the Value Added Tax (Amendment of the Rate of Tax) Order, 2020. 2, Section 5(2) of the Value Added Tax Act, 2013 is amended in paragraph (by) by deletiny the words “sinte substituting therefor the words “fourteen per cent per cent and 3. Tins Order shall become etfectsve on the Ist April, 2020. Made on the 25th March, 2020 UKUR YATANI _ Secretary for the utional Treasury «tt Bltamnngic ei NIE refers ain the aameted adat THE PUBLIC ORDER ACT Marehr9e. flew (Cap. St) : ae COMMISSIONTR PATHS: THE PUBLIC ORDER (STATE CURFEW) ORDER. 2020 IN EXERCISE of the power contorted by section 8 (1) of the Public Order Act, the Cabinet Secretary tor Interior and Co-ordination wermmient nitkes the follow ine Order UBLIC ORDER (STATE CURFEW) ORDER. 2020 1. This Order may be cited as the Public Order (State Curfew) Craton Order, 2020 2. This Order stall apply w the Kenya re territory of the Republic of A#piann 3. This Order shall apply during the hours of darkness between Culex perint seven o'clock in the evening and five o'clock an the morning with effect from the 27th March, 2020 4. Under this Order, there shall be no. public gatherings, Kemewes Provessions or movement either alone or vs a group during the period of the curfewUw- 2a! 6d9S8 Nairobi, Friday Marci 27. 2020 For Immediate Release The Law Enforcement Agencies Must Adhere to the Basic Checklist on Human Rights and Fundamental Freedoms The attention of the Kenyan Nalicnal Commission on Human Rights (KNCHR) has been drawn to the heart-rencing clips and images circulating on social media, clearly showing uncalled for brutally anc ruthless beating being meted an innocent and defenceless Kenyans by Uniformed police officers and other law enforcement officers following the start of the much touted dusk to dawn curfew across the county, It is pitiable and despicable to watch the video clips of uniformed law enforcement officers, who are deemed to be custodians of law and order. incessantly bludgeoning innocent and unarmed Kenyans, jally in Mombasa, at the entrance of the Kenya Ferry Services and other paris of the country. Indeed the enforcement of the Covid-19 pandemic curfew directives should not be a ticket to unleash terror. The gusto, attitude and zeal in which the law enforcement officers were seen harassing and beating innocent members of the public; that included vulnerable persons like women, defeated the solemnity in which they need to handle the mitigating measures of spreading COVID 19. Equally critical actors such as journalists and other essential service providers like drivers of food supplies were not spared in this sheer brutality. That, the law enforcement officers are seen isolating innocent members of the public solely for purposes of inflicting bodily harm to them isa total abuse of basic human rights and funcamental freedoms as enshrined in our Constitution. In this instance the oolice officers are in total breach of peace, failed to Protect the innocent and their actions have the potential of further spreading the novel Corona virus. KNCHR would have expected the law enforcement officers to treat the home-goers in a humane manner and respect their rights and dignity as dictated by the law and even facilitaic orderiy observance of the curfew timings. Members of the public must not be subjected to torture, cruel, inhuman or degrading treatment or punishment as evidenced in the police officers’ actions seen in the social media video clips. The Police officers and law entc ers must proactively and in a professional manner work towards helping 0 defuse tension and preventing dangerous escalations and especially curing this period of observing containment of the novel Corona virus through social disia The melee caused by the law enforcement officers defeats this purpo: The Commission further reiterat context of enforcing the curte promptly, thoroughly and ay yal any human rights violations or abuses in the ‘he law enforcement officers must be investigated should be provided with access tong and abuses through judicial, oversight body ‘ew and in conformity with human rights or other national mevhe) obligations and commiimenis KNCHR reiterates is a importance of safeguarding Pursuant to Article 8° of the Constit 12 of the Prevention of Torture Act the 1. THAT the bill of rights as encapsulated in our Constitution HAS NOT BEEN Suspended during this pandemic and every person is still entitled to his/her fundamental rights and freedoms. in the event of any limitation to any right, then the props * legislative provisions as provided for under Article 24 of the Cor © Part IV of the Public Order Act must be followed to the ict . THAT even in the event of limitation of fights, the freedom from torture, inhuman and degrading treatment is non-derog away by any person 3. THAT respec! for hur u March 2020 where it stressed the fig ots ate costs during all COVID-19 responses. ion 8 of the KNCHR Act and Section Commission thus directs as follows; able and cannot be wished of Law and Access to Justice are critical and essential in combating tie COVID-19 pandemic. Ail actors both State and non- State actors are hence bou the tenets of our Constitution and the Various regional and intemational human rights instruments which Kenya is a signatory. 4. THAT all officers under the National Police Service are bound by the cardinal tules and principles of Article 238 and 244(d) of the Constitution to protect the rights of all and further the legislative obligations under the sixth schedule of the National Police Service Act and Section 14 of the Public Order Act on the se of force 5. THAT the Goveinment directives on COVID-19 more specifically social distancing anc reasonable distance between persons must be respected by ALL including the police during arrests, crowd control and detentions, In view of the prevailing. the KNCHR therefor Calls Up 4. The Inspector Cer a5 a maiter of urgency, to fast-track the issuance of guidelines wilh regard to handling members of the public during this COVID 19 pandemic period and enforcement of the dawn to dusk curfew. These guidelines should call on all law enforcement officers to abide by the law ano the Service Standing Orders in the arrests and handling of arresied persons. Fuither the Inspector General to direct all officers 10 desist and avoid sitiations of compromise, unwarranted deprivation of the right to security and liberty of the person, harassment and extortion of Kenyans te investi rights viola id) prosecutions of all officers culpable of nessed yesterday of General of Police issues an immediate directive on zero tolerance to human sights v © by all lew enforcement officers to avert further deterioration and perpetuation of human rights violations, 4, Employers to put in place mechanism to ensure that their staff have ample time to ensure the curfew timings are adhered to, 2te§. The Government to @ mechanisms to cushion the vulnerable and persons from the lower income bracket that still have to fend for their families despite the prevailing nsk of the COVID-19 and 0 play t 6. All members of the public =it civil responsibilty in adhering to the directives given by the Government to ensure as a country we flatten the curve on the COVID 19 in Kenya Respect for human rights. rule of law and ace in combating the novel Corona wi Commission on Human Rights in ox Article 59 of the Con ensure compliance © justice are critical end essential pandemic. Thus, the Kenya National cls¢ of its mandate under Chapter 4 and hall be Monitoring the enforcement of the curfew to ith human rights principles and standards tion While KNCHR fully supports the Government's response mechanisms and measures of dealing with the COVID 18 pandemic, KNCHR reiterates that observance of human rights and ( ital freedoms is cardinal. KNCHR applauds the media, members of the public and hur defenders for courageously capturing the violations witnessed yesterday The Kenya National Commission on Human Rights invites members of the public with information on the illegal law enforcement off cers’ actions and/or the affected person(s) to contact WhatsApp number Twitter @hak NCI “ @knohr.org om/knchr.org; KNCHR SMS: 22369. Dr. Bernard Nogess, PhO, CPR Secretary to The Commission/Chiei Executive Officer 3) Pag JagsCRCGKENYA STATEMENT ON THE ENFORCEMENT OF THE CURFEW ORDERS AND EXCESSIVE USE OF FORCE, FRIDAY 271 MARCH 2020 FIDA-Kenya has learn! with grave concem of ihe unfortunale manner in which officers Br ihe National Police Service in Kenyc cre enforcing the curfew mecserea recenily (teres bY the Goverment of Kenya vide Legal Nolice No, 36 the Puble cae (State Curiew) order, 2020). We are especially saddened and dislortuee by the evenis on Friday evening, 27m March 2020, where the police lear gassed end brutally Pe egteg Bedestions queuing to use the Kenya Fenty Services ol the Likoni Channa Hackte Oo owore of the numerous reporiec cases across the county where pokeg Officers instead of maintaining law and order are roporied te be misusing their cuihetity to physically abuse and batter law abiding cilizens under the guise of enforcing the curren! curtew order, We expressly slate thal this completely unacceptabie. PonKenva is parliculary concemed by the means in which the potce offices fandied women andl chilcren ore using excessive force and in disegard of ihe human rights of the aftected citizens. images and foolage shared by media house Gemonstiated police officers violating the dignity and saloly of Renyans ond i Particular those of women and childten who ore exceptionally vulnerable, We take note thot the pedestiians who were assaulicd by the pofce officers in this particule were playing theirrole as law abiding ¢ id ensuring hey comply with the 7 pm Guifew. Further the actions of the afiecied citizens were in {ul compliance 10 police Orders as issued and there was no requirement for any usc of excessive tore nthe figunstances. The aclions by Ie Naticnal Police in the circumstances were Iheretore relrogressive anc aacins! the Ini down principles of policing in'an open and democratic society. Fe RenYg 05 a0 insltulion remains olive to the exceptional and unique challenges that the COVID-19 sation has presented to the country and lo Ihe globe os@ whole wrod the elforls by the Government of Kenya and especialy those by The Minisity of Health in containing Inte spread of the panciemic in Kenya, We appreciate that ine preseni challenge calls tor cxite ordinary by Ine government to curb the spread of ihe virus. We Novever call for the respect ond upholding of fundamental human rights of all S@Nd especially those of vulneratsic persons such as women, Children and persons with disabilities at this tine. Additionally, we make reterance to the kei ciown guidelines by the Ministry of Health wilh fegard fo the management of COVID-19in Kenya. In parlicular, we single out the advice on social aislancing that requires ¢ distance of al leas! one meter to be mmaintoined between persons. We regrettably note that ihe management by the NPS in this particular instance at the Likoni Feury Channe! fell short of this requirement, The Use of teargas by th fisperse the Crowd was totally uncalled for and further1da4 endangered the heoitt a evidenced in the images. This is unc We therefore call u; to the affected pe especi immediate action « the police of FIDA -Kenya, we propose the orders: estfians especially the women as fatsic in view of the circumstances 01 Police fo lorthwith issue an apology women and immediately and to take cess who violated women and children. AS lowing with regard to the management of the curlew 1 Insp 1. Whilst appre the need for the oreiers 10 control the spread oi in Kenya Inere is need to have clear enforcement regulations Nationa! Poce Service in Kenyain the implementation of the orc five ol ihe prevailing logistical realities that the Kenyans face such as w public trans; work and back a Ihe inability to afford 2. That employers mus! be directed to ensure Ihe release of workers from their Work slaions in good lime 1o ensure that ali Kenyans are able to comply with the outlined curlew period of 7 pm. 3. The crowd managemen! modailies at Ine Likoni Channel crossing under the Kenya Feiry Service must inciude separate queuing syslem tor women, expectan! women, chicken ard persons with cisabillies who. mudt be accorded special and preferential treatment 4. That the lnsix police officers enforcement c dice must take in ‘© action against ugh! using excessive and unnecessary force i the Ihe curfew orders against law abiding citizens, 5. Thal there mus! be provision in the essential movement during the curfew hours to secommodate expecian! women anc chilclen who may be seeking various madical services during ihe curtew hours, 6 The Govern place mech who may fak 2 ugh The Nefional »isms fo profect women and chilkiran ¢ advantage of the curlew. nieeds to put in sgains! any abuse by those 7. Thal where ariesls are mace ot the curfew, Ihere measures as observed iti the circumstances. lizens who do not comply with the order of Jards social distancing and hygiene must be 8. The freedom ol the aress Containment of the COWID-19 n observed Gt all mes during this petiod of vagemen| FIDA-Kenya will continue to monitor the situation and the curfew enforcement and will not hesitate fo take legal aclion agains! any inclividual or insitution violating the fights of women, We call upon members of the public who happen fo lace women rights violations « an - wing contacts FIDA-KENYA telc contacts: 0722 509760, 0722 623297 and on email address info@fidakenya «1 ie“6d 343 Further, as an instilution we ore available to offer our assistor Kenya on how fo alicciively 1 "gm ¢ to the government of our nation's history. ment in Together we shall overcome COVID-1 Beanbetc. Anne W. irri Executive Direcior 50d Bless Kenya!‘enyans brace brutality as police enforce curfew - Daily Nation |nttps:/www.nation.co.ke/news/Kenyans-brace-brutality-as-police. *Mw-3 ° Kenyans brace brutality as police enforce curfew SUNDAY MARCH 29 2020 aor Police subject commuters to inhumane treatment at Likoni crossing in ‘Mombasa, as they enforced nationwide curfew on March 27, 2020. PHOTO | FILE | NATION MEDIA GROUP in Summary The video begins « There were very few or no arrests despite the police having earlier said they would apprehend and present in court whoever was found in the streets with a group of police officers interrogati + LSK President Netson Favi said they go to ener eating court on Monday to challenge the legality of the woman, who has curfew. stepped out of her car ona Nairobi street. Lot 10 3/30/2020, 10:26 ANKenyans brace brutality as police enforce eurfew - Daily Nation ups: www qaton.o.kenews/Kenyansbrace-brtalty-aspolice ‘tis afew minutes alter the beginning of a countrywide curion a and police officers have been deployed to maintain law and 60945 order and ensure only those who have been exempted are out and about. ‘The woman presents papers to the police, ostensibly to indicate that she meets the exemption criteria. ‘The officers glance at the documents then tell her to get back into the car and drive away. But as she turns to get into the vehicle, one of them rains blows on her. Confused, she turns but more blows send her scampering into her ear. Her experience sums up what happened to thousands of Kenyans on Friday night as police officers descended on those who, for one reason or the other, could not make it home in time. ‘The indiscriminate violence on men, women and children was shocking in its brutality and complete disregard for liberties. It caught in its wake hapless residents, including journalists and medics who were in a list of pre-approved essential staff excepted from the 7pm-5am curfew. PASSENGER LIMIT Videos obtained by the Sunday Nation show hordes of police officers beating guards on night duty, drivers on deserted roads, desperate ferry users agitated by delays at Likoni crossing in Mombasa and journalists on duty. of 10 3/30/2020, 10:26 AN.Kenyans brace brutality ag police enforce curfew - Daily Nation Ips nation co ke/news/Kenyans-brace-brtalty-aspolce In Nairobi, major exit routes like Thika, Mombasa, Jono, ° ee Lang'ata and Ngong roads were clogged with traffic immediately 1046 a press conference by Health Cabinet Secretary Mutahi Kagwe ended at 4pm. Thousands joined long queues at bus stations that extended beyond the 7pm cut-off time as matatus — observing new guidelines — were ferrying at about 50 per cent capacity. As they braved the delays and queues, police officers on the other end were arming themselves with clubs and whips — generally preparing themselves for violence. Videos circulated online showing officers toying with clubs and masks and acting excited about what the night would present to them. And when night fell, all hell broke loose. In Nairobi, police mounted checkpoints on major roads — at Roasters on Thika Road, Sunton in Kasarani, Githogoro (Northern Bypass), Kenya Wildlife Service (Lang’ata), Nyayo Stadium (Mombasa Road), Kiamumbi (Kamiti) and at the University of Nairobi on Waiyaki Way. At the roadblocks, police mostly asked motorists where they were headed and left them to go on their way. NO ARRESTS Inside the estates, however, it was a different story. Those unlucky were beaten. ‘There were very few or no arrests despite the police having earlier said they would apprehend and present in court whoever 3 of 10 3/30/2020, 10:26 AN,Kenyans brace brutality as police enforce curfew - Daily Nation ps ww ation eo kenews/Kenyans brace -btliy-s was found in the streets. » eo ‘Tracking coronavirus (https://www-nation.co.ke/newsplex 3547 /2718262-5496412-11gimflz/index.html) Reacting to the condemnation of the violence, Police Spokesman Charles Owino said action would be taken against officers found to have broken the law. He asked Kenyans to observe the curfew. At least 16 people received medical aid from the Kenya Red Cross and hospitals, according to civil society groups. Those who flouted the curfew were not arrested, but beaten and made to run home, On the island side of Likoni Channel in Mombasa, police rounded up hundreds of pedestrians and forced them to lie on soggy ground. As they lay there crying and pleading for mercy, security officers and National Youth Service personnel beat them up and threw tear-gas canisters at them. Ms Mishi Rajab, 45, was among those caught up in the violence. She limped home late into the night with her sickly two-year-old grandchild, She had taken the child to hospital in the morning and was returning home when the violence erupted. DRIVER ASSAULTED Mombasa Governor Hassan Joho accused the officers of 40f10 3/30/2020, 10:26 ANKenyans brace brutality as police enforce curfew - Daily Nation https: www.nation.co.ke/ ‘news/Kenyans-brace-brutality-as-police.. barbarity and advised companies 10 allow employees to leave i 46 their offices as early as 3pm. uv In Nakuru, police whipped long-distance truck drivers and their turn boys for travelling past the curfew hours Police mounted a roadblock at the junction of the Nakuru- Eldoret highway and Kabarak Road, opposite Westside Mall. And it was here that James, who was transporting bitumen from Mombasa, met his tormentors. “Unaitwa nani? (What's your name?)" the police asked him. He responded with the single name James. “Are you a Kenyan?” He nodded in affirmation. “Do you know your president.” James said he did. “What did the president say?” the police officer asked, and then answered the question himself. “He said people should not be out after 7pm.” ‘The statement echoing the announcement of the curfew by President Uhuru Kenyatta earlier in the week marked the end of the interrogation and the beginning of a beating that James and his loader will never forget. A guard at a petrol station on Kenyatta Avenue was beaten for filming officers assaulting people on the street. COLD NIGHT Police officers across the country appeared to be operating on orders not to arrest anyone, but to assault them. Sof lo 3/30/2020, 10:26 A{ans brace brutality as police enforce curfew Daily Nation bups:/*v ww.nation.cke/news/Kenyans-braee-betality-as-polic.. National Police Service directive earlier in the week had —_ cautioned police chiefs against detaining people. In Bomet and Kericho counties, screams and waling rent the air as police officers with whips and wooden planks unleashed terror on residents heading home after 7pm Mr Anthony Tonui, a businessman in Kericho ‘Town, said he was beaten up by the police as he closed his shop just minutes to 7pm. His house is 100 metres from his shop. ‘Tens of drivers parked their trucks by the roadside in Mulot, Chepseon, Litein, Sotik, Londiani and Kapsoit trading centr ‘They locked themselves in the vehicles and spent the night wherever the curfew found them. In Kisumu, Homa Bay and Kakamega, police used tear gas to disperse defiant youths, who engaged them in cat-and-mouse games. In Kondele, police officers used whips and tear gas to disperse boda-bodas who were still out after 7pm. Leaders and the civil society condemned the violence and called for restraint on the part of the police. LAWSUIT Independent Policing Oversight Authority (Ipoa) chairperson Anne Makori condemned “the brutality and unlawful and excessive use of force” on the residents of Mombasa. is an insult to the hard-fought gains of reforming the 6 oF 10 3/30/2020, 10:26 AMKenyans brace brut brutality as police enforce curfew - Daily Nation tps: wwnation co ke/news/Kenyans-brace-bratity-as-pli police fron > races force to a service,” the agency said. ‘The Nation Media Group condemned the brutality and urged police to exercise caution. Ina statement, Corporate and Regulatory Affairs head Clifford Machoka said: “The level of violence meted out on Kenyans trying to get back home before 7pm, in some cases because of circumstances beyond their control, was unreasonable, against the law and defeated the purpose of uniting the country against the Covid-19 pandemic.” Concerns were also raised by the Law Society of Kenya (LSK), the Council of Governors, the Kenya National Commission on Human Rights (KNCHR) and Fida-Kenya. “the penalty for contravening a curfew isa fine of not more than Sh1,000 or imprisonment for not more than three months, or both. Using force amounts to aggravated ult,” LSK President Nelson Havi said. Mr Havi added that LSK would go to court on Monday to challenge the legality of the curfew. He said police have no right or justification to substitute the penalty with corporal punishment. “Kenyans are requested to document incidents of aggravated wlt by the police and forward the same to the LSK,” he said. We-will take action against the said officers or their superiors.” PROPER PLANNING Tor 10 3/30/2020, 10:26 ANSenyans brace brutality as police enforce curfew - Daily Nation Lutps:/‘ww.nation.co.ke/news/Kenyans-brace-brutality-as-police The Communist Party of Kenya (CPR) asked security’ bosses ta sees rethink their approach to the curfew, JOST ‘The party said the “militarisation” of a looming health crisis will only lead to insecurity of unimaginable proportions. “Coronavirus spread will only be defeated through collaboration and not violation. The virus has caused enough fear among Kenyans. There is no need to impose more fear though police violence,” CPK vice chairman Booker Ngesa told the Sunday Nation. Amani National Congress (ANC) leader Musalia Mudavadi accused the government of failing to plan properly for the curfew, “Curfews are not just imposed and implemented, unless you are dealing with a hostile population in a sudden and violently disruptive situation,” he said. “Curfews must be methodically planned and contingent considerations thought through and mitigated. In this case, there is clear failure on the part of the government. As citizens, we call upon the government to get back to the drawing board.” “While we understand the extraordinary circumstances that have called for this extraordinary intervention, it is not possible to appreciate the brutality that has been part of the implementation of the curfew. The police have gone about it ina manner that is inconsiderate and inhumane.” BILL OF RIGHTS fof 10 3/30/2020, 10:26 AMKenyans brace brutality as police enforce curfew - Daily Nation https:/vww.nation.co.ke/news/Kenyans-brace-brutality-as-police Couneil of Governors Chairman Wycliffe Oparanya said the ° violence is unacceptable, while KNCHR said the Bill of Rights, as “OUdSZ spelt out in the Constitution, has not been suspended by the pandemic. Despite the condemnation, some political leaders and lawyers said it is necessary for the government to use “any means necessary" to control the spread of the virus. “There are reasons Covid-19 is getting under control in China and running out of control in Italy,” Gatundu South MP Moses Kuria said. “rhe Chinese are not joking about the curfew. You obey laid down guidelines or face the music. In Italy, the liberal and reactionary media place civil liberties over safety.” Mr Donald Kipkorir, a lawyer, tweeted that when a curfew is declared, ordinary laws do not apply, and that those who argue otherwise “want to excite the poor” ‘The police brutality happened just a few hours after Deputy Inspector-General of Police Edward Mbugua issued orders to regional commanders to “use proportionate force where non- violent means are inadequate to achieve the obje curfew". ‘The officers were directed to ensure that locals remain indoors and to stop and detain any individual found outdoors within the curfew hours, except for those providing essential services. Mr Mbugua also directed police officers to enter and search any 9 of 10 3/30/2020, 10:26 AM.Kenyans brace a 45 polige enforce curfew - Daily Nation ups:/www.nation.co.ke/news/Kenyans-brace-brutality-as-police.. premises and detain individuals found violating the curfew, to assist in identification, removal and isolation of s uspected infected persons and to grant police bonds to detained persons where appropriate. Report by Vincent Achuka, Wanjohi Githae, Mohamed Ahmed, Nyambega Gisesa, Brian Wachira, Samuel Baya and Philip Muyanga Worle 3/30/2020, 10:26 AWMKenya police under fire over 'excessive force! as curfew begins | ‘tps: wwwealjazeera.com/news/2020/03/kenya-police-fie-exces. tof Gd054 MAYRZEERA NEWS / AFRICA Kenya police under fire over ‘excessive force' as curfew begins Police fire tear gas and beat commuters with batons as country imposes dusk-to-dawn measure amid coronavirt Sight. 28 Mar 2020 3/30/2020, 10:28 AM,2of3 ya police under fire aver ‘excessive force! as curfew baaps:/wwwalja 81 80 }455 G619. E-mall addresses: ‘emmanuel.mutisya@yahoo,com. ©2011, Intemational Transaction Journal of Engineering, Management, & Applied Sciences & Technologies. Yolume 2 No.2. ISSN 2226-9860 ISSN 1906-9642, Online Available at ntip://TuFngr.com/VO2/197-213.pdt- “9062 Kenya's annual informal settlements growth tate of 5% is the highest in the world and itis. likely to double in the next 30 years if positive intervention measures are not put in place (UNDP, 2007). According to UN-H itat (2003), the experience in these slums shows a strong link that people living in poverty are trapped in their present (World Economic and Social Survey, 2008) situation because they are excluded from the rest of the society. Unfortunately, they are not empowered to allow them to make any significant contribution to community building (United Nations Population Division. 1998; Mutisya, 2010), pushing Nairobi city to the verge of sinking into abyss as the weight of mushrooming slums takes its tol ‘These unprecedented rates of urbanization can be linked to massive migratory movements as well as (0 natural growth, challenging urban planning and thereby causing environmental problems with far reaching effects. While the low quality of housing and the general lack of basic infrastructure especially sanitation, drainage, access to energy and clean water supply result in poor social and environmental conditions, high levels of unemployment and low income give rise to confliets (Beatley, 2000; Smith & Hanson, 2003; Pamoja Trust, 2009), The situation is not helped by lack of supporting policies for effective urban planning and improvement. Slums in Nairobi have existed since the cities inception, the government has failed to respond to the flight of slums dwellers accordingly (Mitullah, 2003), even after being classified as illegal. Life is very difficult to approximately 1.5 million people in Nairobi informal settlements, The residents in these ares s live under deplorable conditions with lack of the most basie needs and social amenities and face multi-dimensional challenges which require multi-dimensional interventions such as clean water supply and improved sanitation, energy, solid waste management, housing, schools, and hospitals (United Nations, 2006; Centre on Housing Rights and Evictions, 2008). Si ce illegal, informal settlements were previously abolished by the government through forced evictions often leading to conflicts. Fortunately, the government has recently drafted strategie plan papers and policies recognizing the existence of slums and the need to improve them though this does not address the lack of security of tenure and fails to help with access to the most essential social services. 2. Nairobi's Informal Settlements Informal settlements have a long history in Nairobi dating from colonial period, where ‘most Africans were barred from the city’s designated residential areas since they were reserved«00063 for Europeans and Asians. Kenyans who came to the city in search of work had to create informal residential settlements outside the central business district and the planned residential nal, 2009}, areas which were largely ignored by the colonial government [Amnesty Intern: Mitullah (2003) argues out that the city’s first development plans did not include early settlements; hence essential services to the settlements and road construction to link them to other areas of the eity were not provided by the local authorities. As a result, Nairobi developed along segregated lines, The city’s 1948 Master Plan and other major urban development plans continued to neglect informal settlements (Anyamba, T.J.C., n0 date), “The people who live in the slums around Nairobi and other towns of our country require special attention.” (The President of the Republic of Kenya, His Excellency Hon, Mwai Kibaki) Nairobi, the capital city of Kenya and one of the largest in Africa, is the hub of trade and business in Eastern Aftica, The city’s population has grown over the years from 11,00 inhabitants in 1906 to 3.1 million people in 2009 [KNBS, 2010] with more than half the city’s population living in informal settlements and slums occupying less than 1% of Nairobi’s area and less than 5% in residential area [Mitullah, 2003] as shown in Figure 1 6,000,000 §,000,000 4,000,000 3,000,000 4 Population 2,000,000 | 1,000,000 ————— el - _} 1900 1920 1940 1960 1980 2000-2020 2040 Year Figure 1: Nairobi Population Growth (Data Source: Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat, World Population Prospects). “Corresponding author (Emmanuel Mutiiya). Tel: +81 80 3455 0619. Email addresses emmanuel, mutisya@yahoo,com. ©2011. international Transaction Journal of Engineering, ry Managoment, & Applied Sciences & Technologies. Volume 2 No.2. ISSN 2228-9860 eISSN 1906-9642, Online Available at intto:/TuEngr.com/¥02!197-213.pioe" With a rapid urbanization growth rate of about 4%, current population is projected to grow to 5 million by 2015 and to more than 8 million by 2025 [UN, 2001], And unlike cities in developed countries, Nairobi’s growth is not accompanied with equal socio-economic and environmental development. ‘The informal settlements are scattered within Nairobi’s nine administrative divisions (Figure 2), Residents in these marginalized areas live in very inhumane and disturbing conditions with severe lack of clean water supply, improved sanitation, housing, health services, and lack of solid waste management facilities [Umande Trust, 2007]. In addition to this, slums dwellers face inadequate schooling facilities, unemployment, lack of energy, lack of drainage systems, high crime rates, and lack of proper governance including security services. This has resulted to life threatening outcomes which lead to mass poverty, contagious diseases, conflicts, and other social, ecological and economic hazards. Distribution of Informal Settlements in Nairobi oe ee ee ee Figure 2: Distribution of informal settlements in Nairobi Administrative Divisions.“065 Informal settlements in Nairobi are the consequence of both explicit government polie and decades of official indifference, In particula formal settlements were excluded from city authority planning and budgeting processes. The governments in power have ignored their existence until recently when national authorities and international bodies outlined the dangers of slums to humanity, Complexities surrounding slums in the city have made it difficult for the government to pass workable policies which if enacted and applied in the right way could help Kenya improve slums life. In Nairobi therefore, the lack of recognition of slums and settlements as residential areas denies residents a range of essential services provided by the government to other residents of the city, These essential services include improved water supply, improved sanitation, electricity, garbage collection, improved health services, education, access roads and transport, Lack of good governance and proper leadership in these settlements has worsened the situation. The experience of slum-dwellers starkly illustrates that people living in poverty not only face deprivation but are iso trapped in poverty because they are exeluded from the rest of the society, denied a say. and threatened with violence and insecurity [Amnesty International, 2009). There is indeed a clean lack of empowerment and social capital and corrupt authorities have taken advantage of this, Kibera informal settiem s (began in 1912) have an estimated population of 950,000 people, while Mathare slums (started in 1963) houses n ore than 500,000 people, Korogocho slums (started in 1980s) has an estimated population of 150,000 people and Mukuru Kwa Njewga (began in 1958) has an estimated population of 100,000 people (Umande Trust, 2007) 3, Kibera Informal Settlement Kibera cone of the largest slums in AVfica with an average population of approximately more than nine hundred thousa \d people (Uimande Trust, 2010). The slum stands on a 2.5 square kilometers and is roughly five kilometers away from the city center. In 1912, Kibera was settlement in a forest outside Nairobi: as a result of World War, it became a resettlement area for Nubian soldiers returning from service. The colonial government then. allowed settlements to grow and opened gates to other tribes from across the country *Corvesponding author (Emmanuel Mutisya), Tel: +81 80 3455 0619. “E-mail addresses: ‘emmanuel [email protected]. ©2011. international Transaction Journal of Engineering, Management, & Applied Sciences & Technologies. Volume 2 No.2. ISSN 2278-9860 eISSN 1906-9642, Online Available at http: //TuEngr.com/YO2/197-213.pat0066 4,000,000 300,000 £800,000 700,000 600,000 500,000 400,000 300,000 200,000 +100,000 = — 1960 1970 1980 1990 2000 2010 2020 Year Figure 3: Kibera’s population growth (Data source: An average of Kenya Bureau of Statistics Approximations, UN-Habitat, Local government, NGOs in Kibera). In 1963, the first government of the Republic of Kenya declared Kibera settlements illegal However. Kibera slums continued to grow thom as low as 6.000 people in 1965 to around one million today. Proximity to the city center, provided a cheaper ground for people from rural ‘areas who move in search of employment opportunities. Lack of reliable data on population and growth parameters on Kibera slums has led to disagreements on the size of the slums as one of the largest in the continent, UN-Habitat puts the total population at between 350,000 to one rillion. International Housing Coalition estimates the population to more than half a million people, while experts on urban slums an estimate of more than 800,000 people. Government statistics on the total population of Kibera slums to around 200,000 people [KNBS. 2010] as shown in Figure 3. Many new residents come from rural areas with chronic underdevelopment and overpopulation issues. The multi-ethnic nature of Kibera’s populism combined with the tribatism that pervades Kenyan polities has led Kibera hosting a number of small ethnic conflicts throughout its century-long, history. Initially, the Kikuyu tribe dominated Kibera slums population. However over the years, the Luo tribe has grown dot inant (Figure 4). Today. Kibera’s residents represent all the major Kenyan ethnic backgrounds, with some areas being specifically dominated by peoples of one ethnno-linguistic group.Others kalenjn. 6% Figure 4: Population by tribe (Date Source: Umande Trust, 2007; CBO’s in Kibera). Divisions and Coen inager oye Figure 5: A map of villages in Kibera informal settlements, ‘The Kenyan government owns all the land upon which Kibera stands, though it continues to not officially acknowledge the settlement: no basic services, schools, clinics, running water or lavatories are public ly provided, and the services that do exist are privately owned. Kiera settlement is located on two Nairobi divisional administrative areas; Dagorett and Langata divisions, The slums is divided into 14 villages with varying populations - Kianda, “Corresponding author (Emmanuel Mutisya). Tel: ~81 80 3455 619, Se emmanuel. [email protected]. ©2011. international Transaction Journal of Engineering, Management, & Applied Sciences & Technologies. Volume 2 No.2. ISSN 2228-9860 eISSN 1906-9642. Online Avaitable at ntipr//Tuengr com/V02/197-213. pathddbs Olympic, Soweto West, Gatwekera, Raila, Karanja, Kisumu Ndogo, Makina, Kambi Muru, Mashimoni, Lindi, Laini Saba. Silanga and Soweto East Figure 6 shows Kibera’s population by village. Makina, with a population of 130,000 people is the largest village by population, Mashimoni, Katwekera, Kianda and Laini Saba villages equally accommodate large populations of more than 80,000 people per village. Since these government policies have not focused on making low-cost housing available or providing slum-dwellets with viable long-term alternatives, the state has contributed to the proliferation of informal settlements. In the absence of other affordable housing, many people who migrate to Nairobi have no realistic alternative to life in the slums. Soweto Fast Silanga Lani Saba Lind = = Mashimani = Kombi Muru Making som SESE RCRA Raila Kisumu Ndogo Karanja Katwekera | Soweto West = cam Olympic pees a Kionde © 20,000 40,000 60,000 80,000 100,000 120,000 40,000 Population Figure 6; Kibera slums population: Kenya National Bureau of Statistics, 2010; Umande Trust 4, Sustainability Challenges in Kibera informal Settlements ‘The incidence of crime, robbery and gang violence, as well as gentler based domestic violence in informal settlements: undermine both macro and micro economic growth and productivity ofa country's development, as well as social and individual well-being" (Dr. Anna K. Tibaijuka, The Executive Director, UN Habitat 2007) Kibera informal settlements suffer froma host of challenges, The residents live under mass poverty leading to a collection of sustainability challenges. Access to clean water, improved VA gud Masary VARIMEsanitation, good housing. solid waste manayement, proper health care, security and energy are some of the most fundamental challenges faced by slums dwellers. Together with this is the lack of enough schools and educational centers and a huge deficieney of other urban infrastructure (Guy, Marvin & Moss, 1001). In addition, Kibera is heavily polluted by human refuse, garbage, soot, dust, and other wastes. The slum is contaminated with human and animal feces and all sorts of wastes which are worsened by open sewages and lack of drainage systems (Hardoy, Mitlin & Satterthwaite, 200: lodson & Marvin, 2009), Poverty, lack of improved sanitation combined with poor nutrition among residents’ accounts for many illnesses and diseases in slums (Heynen, Kaika & Swyngedouw, 2006; Kumar, higeo & Harada, 2003). It is, estimated that 20% of the 2.2 m ion Kenyans living with HIV live in Kibera, 60 50 + | 40 Schools a ‘eHealth Centers, 20 il J f ih | Water points aL i Md cemersn! ae se &. ‘re x ae FPL OS o e woe Village Number of Facilites Figure 7: Social facilities in Kibera slums (Data Source: Authors” fieldwork findings). ‘There is however a continued intervention by international organizations, NGOs/CBOs/FBOs, financi this slum, These organizations have erected schools, water institutions, and even the government to improve the situation in sks, health centers, and t different villages in Kibera slums but these facilities are inadequate given the high number of people living in Kibera (Pigure 7), These immediate challenges attract more evils such as crimes, accidents, and diseases, diag aor” (Enianel-Matiya). Teli “Bi 80 FHSS 619. Email addresses: emmanuel,mutisyacyatoo.com, ©2011. international Transaction Journat of Engineering, (Be Management, & Applied Sciences G Technologies. Volume 2. No.2. SSN 2278-9860 (laa e155N 1906-9642, Online Avaitable at http://Tukng com /V02/197-213.pat4.1 Improved Water Supply Most slums dwellers have three main concems with water: access, cost and quality, They complain about the limited access to water points, which are offen located far from their houses, some landlords ration water such that it is only available on specific days of the week and at specific times (Water Sanitation Program, 2007). This is a limitation especially for people who have children and would require high amounts of water. However, for those who have access they decry the high cost of buying water in the informal settlements, This is costly especially relative to the slum residems? income lev: Some Kibera slums dwellers use sewerage water for bathing and washing, They also use borehole, rainwater, and sometimes draw water fro! broken pipes. This water is highly contaminated and filthy especially when plastic pipes burst and can potentially cause contagious diseases, For many years, Kibera slums has not had clean water points as most collected water comes from Nairobi dum. The Kenyan government in 2007 admitted that sustainable access to water dropped {0 as low as 20 per cent in the settlements of the urban poor where half of the turban population lives. This is a tragie situation given that Kenya falls far below the estimated defined minimum water per capita requirement (Water Sar ration Program, 2008) However, many organizations including the World Bank have funded some water projects in the slums but still more than 75% of the residents kick access to sufficient clean water. Many NGOs and CBOs have also supported clean water provision and campaigns across the slums, K-Rep, a microfin 2007 ce institution has funded water projects through group loans since A lot has been done by the Kenyan government in the past to improve water provision to Urban poor. In 2003, the Water Act 2000 was implemented to pave way to water reforms including privatization of water services. However, this has not improved the situation in Kibera slums, it only made water se more expensive than neighboring areas, In Kibera slums, the cost of water is seven times higher than that paid by people in high-income !007; National Water settlements served by the Nairobi Wat 2007} and Sewage Company (UNDP. Strategy Ja764.2 Improved Sanitation The lack of improved sanitation facilities, including toilets, showers, and sewage disposal has been well documented in Kibera, Ninety four percent of the population in informal settlements does not have access to adequat nitation. Lip to sixty per cent of the population in Kibera must share pit latrines with approsimately fifly others, Even when toilet facilities are available, people complain that they are not conveniently located, that they are unelean, or that using them at night poses a security risk, Children are especially vulnerable to inadequate toilets because they may lack access to household keys which unlock the community toilets. The toilets are mostly built by the support of NGOs and managed by CBOs. With few toilets and pit latrines, there has also been a continued growth of “flying toilets”, ‘The reality behind these flying toilets is the inacces: bility of toilet facilities especially during late hours due to uneven distribution and lack of convenience resulting to insecurity. Most toilets and pit latrines are owned and managed by community groups and also individual businessmen who charge Ksh. 5 per person per every visit. Several organizations and stakeholders are investing heavily on improved sanitation. Umande Trust, a well-established NGO is working in different parts of Kibera settlements to improve sanitation through erection of biogas toilets which are also sources of energy through production of biogas and methane. This development of the biogas latrines has come in handy and now helps the community because of the low cost charged per visit. The bio- latrine uses the technology of airless digestion to transform human waste into fertilizer and gas suitable for uses lil @ cooking, heating, lighting ete this therefore generates a sizeable amount of energy. Consequently. the community is able to properly dispose human waste and at the same time reduce pollution and environ ental degradation, 4.3. Energy Availability Kibera residents have to rely almost exclusively on firewood and charcoal. Mostly women and girls have to walk for distances to look for firewood. Charcoal is often prepared for commercial purposes. Entire trees are being carbonized and sold in sacks to the poor in urban areas, *Comesponding author (Enimanuet Mutisya). Tel: +81 80 3455 0619. Email adaresses: § [email protected]. ©2011. International Transaction Jounal of Engineering, iNanagement, & Applicd Sciences & Technologies. Volume 2 No.2. ISSN 2228-9860 eISSN 1906-9642. Online Available at to: //TuEnw.com/VO2/197-213.00t JaTiMore than 70% of the slums lack electricity, Provision of energy is controlled by fovernment owned firms and since Kibera settlements are classified as illegal, these energy firms have not been able to set power transinission points in many parts of Kibera, In addition, the cost of electricity is quite high not only to slums residents but also to the rest of Kenyans living in the eity Energy development must precede economic development because no area can succeed in shaking loose fiom a subsistence economy without widespread access to energy services. Adopt-A-Light was set in 2002 to assist light the ci 'y of Nairobi in collaboration with the Nairobi’s city council and has erected lighting masts in Kibera slums. In 2005, the UN-Habi t's Slum Lighting Project was commissioned to assist with lighting the city, These ave helped in providing light in Kibera slums among other slums in the city 44 — Solid Waste Management While poor management of solid waste isa general problem in Kenya, itis probably worst in Nairobi. Solid wastes in Nairobi are a by-product of a broad spectrum of industrial, service and manufacturing processes. Primary high-volume generators of industrial solid wastes include chemicals, petroleum, metals, wood. paper, leather, textile and transportation industries. Secondary smaller generators inchide auto and equipment repair shops, electroplaters, construction firms, dry eleaners and pesticide applicators. Mismanagement of these wastes typically results in pollution of the natural environment and may pose substantial danger to public health and welfure Over the years, Kibera slums has been isolated by the Nairobi City Council. There are no garbage collection systems in the slums, Due to this neglect, solid wastes have grown into mount s of heaps over the years with most of it being washed into water channels during the rainy season further contaminating underground water. Tons of solid wastes are generated every month in Kibera slums, There are no solid waste dumping sites and no recycling plants, Uncollected solid waste is one of Kibera's most visible environmental problems: ‘The municipal services seem to fail most str garbage collection and disposal because it causes litering and untidiness which has an immediate adverse psychological impact, The lack of adequate garbage disposal in an area often results in negative attitudes that contribute to a general deterioration of community development and cohesion ara VARIN ieOne half of the solid waste generated in Kibe consists of organic matter. Toxic materials, are estimated to be 0.2 percent of the total. For households alone, it is estimated that three-quarters of the waste is organic material, Estimates for the daily generation of solid waste in Kibera range from 150 tonnes to 200 tonnes (L mande Trust, 2007). Waste collection services are provided only sporadically to low-income arcas because of poor accessibility and very high waste generation which cannot be handled with available vehicles and equipment, The recycling equipment used by some NGOs like Carolina for Kibera is small and can only take in a very minute percentaze of Kibera’s waste, Other problems nclude inadequate financing, a lack of recognition of the importance of satisfactory and effective waste management by the policy makers, and inadequate training of managers to handle the increasingly large amounts of solid waste. 4.5. Provi n of Housing ‘There are more than 30,000 structures in Kibera slums which are mud walled and thatched with corrugated iron sheets [Amnesty Internationial, 2009}. A household in the slums comprises of seven members on average and usually stands on a 12R by 12ft structure costing almost USS15 per month, The local authorities usually issue temporary occupation licenses to the owners. Around 10% of Kibera residents own the structures and sub-let thent to the remaining 90% (UN-Habitat, 2003). The structures are owed by informal owners who are recognized by the tenants, but they have no legal ownership. The tenants pay a monthly micro-lease to the owners. Acumen Fund, through Jamii !’ora is supporting the construction of affordable houses with the aim of moving slums d\vellers fiont their deplorable living conditions to these better houses. This project is aimed at those residents who earn less than 350 US dollars per month, Also, the government of Kenya in conjunetion with UN-Habitat started an upgrading programme aimed at building affordable housing, units in Kibera sium ‘The first batch of people was allocated houses with a monthly rent cost of 10 US dotlars late 2009. responding author (Emmanuel Mut sya). Tet: +81 BO 345 0619. E-mail addresses: ezmmanueuratizvasanao. com. ©201"ntrpalonl Tarsacton Jura of ergncerng, | aOR Management, & Applied Sciences & Technologies. Volume Z No.2. ISSN 2226-9860 BBN 908962, Sine Aalable ts, Tuens con VOCI97. 235. Conclusion The outcome of this research showy the 1 ‘za problems city dwellers in Nairobi face. Results show a serious shortage of social ainenities in Kibera slums with especially an acute deficit in clean water supply, improved sanitation, and solid waste management. For slum dwellers, water is more expensive since Nairobi City Council has not yet provided piped water, leaving water vendors as the sole suppliers af cican water. Lack of enough toilets poses other i serious challenges like contagious diseases. Ressarch results indicate that up to 150 people share one toilet facility, In addition, very litte solid waste is collected by NGOs leaving. thousands of tons of garbage scattered everywhere, These shortages of public services remain a serious challenge to especially so al and environmental urban development. This research clearly points out that the problem of unsustainable urban growth in Kenya is not just about poverty but the poverty of ideas. The government and organizations operating in informal settlements in Nairobi and other stakeholders have not been able to come up with new and applicable ideas to combat the rising growth of slums. Nairobi, just like any other Aftican city is not only faced by sustainable development challenges but also sustainability of developmental efforts. Negligence by the Kenyan government to improve informal settlements and at least to provide the minimum support on basic reuiresnents and services has led to unimaginable suffering to slums residents. This is coupled lny the faet that the government fails to recognize the growth and proliferation of informal settlemenis and thus excludes them from the rest of the city’s development plan. The government anid UN-Habitat development plan for Kibera settlements upgrading is a good gesture but falls short of'a comprehensive plan to recognize the settlements and to invest in improving the liviny conditions, The increasing level of population without equivalent development of these settlements is worrying. With so many’ sustainability challenges increase in population in Nairobi slums has aggravated the situation, Together with this. the lack of allocation of resources by the central government to these settlements has ensured that the residents continue to wallow in sustainability challenges. It is hoped that the ing of a new constitution which advocates for devolution of governance and resourees wouk! help change the course of events in informal settlements in Nairobi if pertinent laws are implemented to eater for t Uy Faumeanuel MUTISYA sid Masaru 9 \ICiMEThe article further shows that Kibera slums hus evolved over the years, It helps in defining, understanding and uncovering multidimensics historical perspe Historically, the government and other organisations have claimed that they have done a lot but the situation currently remains deplorable, Lins clearly points out that in slums in Kenya; the ‘more things change tie more they remain the sume. Da 1a provided in this article is useful to policymakers and other stakeholders to formulate workable policies that will be used to tackle the ever increasing social and enviroumentsl challenges slums and help end the routinized processes of exelusion, exploitation snd diseri)ination of slums residents This paper proposes that the goverment sui! ather organizations should therefore: i) Recognize informal ws legal parts of the city and support comprehensive development programmes and projects in slums. ii) Support and foresee that implementation of the slum upgrading programme complies with the goverument’s vblivations in relation to the right to adequate housing. iii) Ensure that the slum upgrading programme and policies address immediate needs in relation to water, sanitation, health, energy, housing, in addition to medium- and long-term goals. iv) Encourage collaborative programmes and projects, 6. Acknowledgements The Authors sincerely thank Uivande Twust for their support in assisting with fieldwork visits to Kibera Slums ancl also for providing us ith the basic information on Kibera’s situation. ‘The authors also thank all the support from 1 ity of Tokyo, United Nations University and the Honjo Foundation both financially and aeademivally. Special thanks go to Prof. of United Na Masafumi Naga iows University and Dr. Warounsak Liamleam for his contributions helping elarify and improve the \ useript. 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(2003), Access to water for the urban poor in Cape Town: where equity meets cost recovery. Urban Studies 40/8): | 517-1548, Umande Trust Kibera, (2007). The kight to Water and Sanitation in Kibera in Nairobi, Kenya UN-Habitat (2003): The Challeng ums - Global Report on Human Settlements United Nations Development Progrunme. (2007), Human Development Report 2007/2008 Fighting Climate Change: Human Security in a Divided World. United Nations Development Pro me: New York. United Nations Population Division. (1998). World Population Monitoring, 1997. New York: United Nations. United Nations, (2006). The Millenium Development Goals Report. United Nations: New York. erry 2 maraauel MUTISVA and Masae oe © i‘Water Sanitation Program (2007): bipy/www wsp.org. Last Accessed Jan 2010 Water Sanitation Program (2008). Improving water utility services through delegated management. Water and Sanitation Program Field Note, World Bank Water and Sanitation Program World Economie and Social Survey (2008): Ove Department of Economie and Soci Tairs uuing Eeonomie inseeurity. United Nations, eee manuel Mutisya isa PHD caidate of Crane Program i Sustainability Science (GPSS) atthe University of Tokyo He is als cing his Nem cieoraphis Informa and Spatial mapping in Lun University.” He received is BA i gern Universi, He hs an MSe fom Karlstad Univeroe? and an MA ftom International Christian Uisveris He curently works with United Nations Unirerate {Unsttte oF Sutamatiy and Peagey as oft situ on Sustainable Developmentin Afi, is inttests involve mnisrofinance,sastainabc even, urban planning, aovaions and modeling DrYarime Masaru is an Avwciate Prosser ia Graduate Program in Sustainability Selene in the University of Tokyo, He holds HE in Chess! Fagasering rom the University of Tokye Ms tatchemet Engiesring fom California Intute of tccnol ny and a PhD in Eoonomis of Technological Change trom University’ of Maasirtet. He supers es sever Masters degre and M.D dissertations and thence Sustainability Seienee: De: Yasin has wich wigs tanovations and Sustainabily and has an extenehe xperenc in ner a inascpinacy vars sisanaliy is neress are corporate sates, public policy stitution design for sasiainabilt.sinosstim, and ereation.diffsiom tlzaion of seketife ard ‘eslologisal data, information, and huowiciee kv nnovation, Peer Review: This article has been internationally peer-reviewed and accepted for publication according to the guidelines given at the journal's website. “Corresponding author (Emmanuel Mutisya). Tel: sui ay 3455 OSI. E-mail addresses: e nutisyeyahoo.com. ©2011, International Transaction Journal of Engineering, Management, & Applied Sciences & Technologies. Volume 2 No.2.” ISSN 2278-9866 eISSN 1906-9642, Online Available at hetp://TuFnar.co/¥2/ 197-243, pat cds