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High Court declines to overturn 21-day dusk-to-dawn curfew

The High Court has dismissed an application seeking to have the dusk-to-dawn curfew imposed by the government late last month suspended.

In an application filed on March 30, 2020, the Law Society of Kenya (LSK) asked the court to stop the 7pm to 5am curfew, arguing that it is illegal.

LSK claimed that police were taking advantage of the 21-day restriction to unleash terror and violence on innocent Kenyans.

But in a ruling on Thursday, High Court Justice Weldon Korir upheld the curfew, saying it is one of the precautionary measures taken by the government to stem the spread of the coronavirus disease.

The judge pointed out that the government cannot be faulted for implementing a precautionary principle.

“This is a time to stand together and face a common enemy in the fight for our survival. Each one of us should be engaged in the fight,” Justice Korir said in his decision.

Justice Korir nevertheless noted that the use of excessive force by police during curfew hours is unconstitutional.

CURFEW

At the same time, the court gave Interior Cabinet Secretary Fred Matiang’i five days to include the members “in the list of services, personnel or workers exempted from the provisions of the curfew” who include LSK members and Independent Policing Oversight Authority (IPOA) in the list of essential service providers who are exempted from the curfew.

Members of Parliament are also headed for a clash with the Interior CS over the dusk-to-dawn curfew as they insist the regulations should not apply to them.

The lawmakers argue that the House Standing Orders in section 30(2) clearly state that sittings should be held between 2.30pm and 7pm and that the CS has no powers to alter the National Assembly’s procedures.

MPs argue that most of the pronouncements by the Executive in the fight against the coronavirus need legislative backing and that they should, therefore, be listed as part of essential service providers.

The Public Order Act gives the Interior CS sweeping powers to impose a curfew on a geographical area, forcing residents to remain indoors for a specified period.

According to the law, the curfew remains in force until rescinded by the minister.

To combat the spread of Covid-19, President Uhuru Kenyatta imposed a 10-hour nationwide daily curfew running from 7pm to 5am.

The government has also banned all social gatherings including parties as part of the measures to stem transmission of the virus.