Key Change That Could Improve Curfew

The legal fraternity has proposed a key change in the curfew guidelines issued by President Uhuru Kenyatta on Wednesday, March 25.

Led by Law Society of Kenya (LSK) President, Nelson Havi, the body wanted the President to include the legal community in the list of essential services that could work during the curfew.

In a Twitter statement on Wednesday, March 25. Havi explained that leaving this category out would create loopholes where the law was not upheld.

Lawyers Daniel Maanzo (left), Ham Langat (centre) and Nelson Havi address journalists at the Miliamani law courts on January 10, 2018.

Daily Nation

"Exclusion of legal services in GoK’s enumeration of critical and essential services prejudices employers and employees in the sector. The rule of law will also be compromised," stated Havi.

Charles Kanjama, the head of the Nairobi Chapter of the LSK echoed these sentiments providing that it was necessary to let legal personnel operate during the hours the curfew would be in force.

Speaking to Kenyans.co.ke Kanjama explained that this was paramount in ensuring that human rights were observed.

"Essential services are needed even at night. Assuming you are arrested at 6.00 pm and you are in a police station, don't you need a lawyer to assist you?" Kanjama queried.

The Nairobi based lawyer highlighted that the government had made a crucial error in leaving out legal personnel among essential service providers and it was imperative that the error is rectified for the sake of the citizenry.

"When the government does this they tend to forget other sectors, so it is our responsibility to speak out. For me I'm very clear that the omission of the justice sector is a grave error in judgement and would cause harm to the people," asserted Kanjama.

Kanjama voiced the view that respect for human rights would be compromised if the legal body was grounded in during curfew hours.

"The moment you acknowledge that there are hours of the day and night in which your access to justice is hampered by a decision of the executive, you create incentives for them to violate your rights at that time," he explained.

The lawyer expressed concern that those who were arrested in the prescribed hours of 7.00 pm and 5.00 am would lack recourse if the legal arm remained locked out.

"Say you are arrested at 4.00 p.m and you call me but before anything can be done it's 6.00 p.m. Then they tell me 'Kanjama go home, you need an hour to get there', don't you need legal services at that time?" Kanjama posed

Judiciary is needed, lawyers are needed. A curfew doesn't mean that people stop being arrested," he added.

Following the same vein, the lawyer highlighted that there was no one to ensure that fundamental rights were not abrogated during the curfew.

"The rights that cant be restricted even during a curfew need laws and the justice system to work if they are to be enforced," he asserted.

As per the 2010 Consitution, the rights Kanjama referenced were freedom from torture, cruel, inhumane and degrading treatment, freedom from slavery, right to a fair trial and right of an arrested person to be brought before a judge. 

The lawyer further provided that the justice system is a value chain and any member could address the violation of rights even outside normal court hours.

Lawyers Nelson Havi (left) and Charles Kanjama (right) at the Nairobi Legal Awards, Nairobi County, in May 2018

Twitter

"For example when you are in the police station at night, a lawyer can come in at midnight and ask the OCPD or OCS to deal with the violation of rights. Are we to suspend justice because the courts will open at nine?" Kanjama questioned.

Kanjama maintained his stance that there was a crucial need to recognise the legal fraternity as an essential service.

"The truth of the matter is that it's a value chain, that moment you create a black hole, violations of rights will occur," he concluded.