As the security forces of some African countries take abusive action against people under cover of COVID-19 lockdown regulations, human rights groups have begun to fight back. Prompted by complaints of serious constitutional rights’ violations – beatings, torture and other abusive and humiliating treatment – Kenya’s law society has brought a petition to the courts, and a human rights organisation in South Africa has done the same. In Kenya the court has agreed to part of the petition, with other issues still to be argued at a later date, possibly even today, while the SA case could be called later this month.
The coronavirus has been synonymous with human rights abuses from its first manifestation. In China, epicenter of the world’s pandemic, for example, doctors reporting their discovery of a new virus were reprimanded and forced to sign acknowledgment of ‘misdemeanours’ they had committed.
Human rights abuses have also been reported in its wake from many other countries and continents, with Africa no exception. In several African countries where lockdown or other measures have been instituted to curb the spread of the coronavirus, disturbing reports have emerged of security force behaviour and now, in some states, the courts are being asked to help stop violations of the constitution. Full or partial closure of courts has been announced in certain countries, which could complicate matters if the drive to assert constitutional rights continues to spread.
Earlier this week, Kenya’s law society took action against police abuse. They filed a petition ‘to protect and assist the public’ and challenged the new dusk to dawn curfew order imposed on that country, saying it was unconstitutional.
The curfew was announced on Friday 27 March as a measure, short of lockdown, to help slow the spread of the virus. However, according to the law society, the curfew hours were unreasonable in that they kicked in before people were able to get home. While they were in transit between work and home, police assaulted people who were not to blame for still being out of doors. A report from Mombassa described police beating people in a queue to board the ferry which is the only way back home to the mainland after work. This occurred two hours before the curfew was due to take effect. Local media showed clips of police apparently beating members of the media covering these and other events in the city.
Among other petitions, the lawyers’ application said the curfew hours had to be changed to ensure that people were able to get back from work before its starting time.
The law society said the curfew posed ‘a great and imminent danger’ to the health and safety of thousands of Kenyans, ‘particularly the poor and vulnerable’. Since its imposition by the head of the police late last week, members of the police had ‘unleashed a campaign of terror and violence against the public’.
They said the police had tear-gassed and violently assaulted ‘vulnerable persons like pregnant women, the elderly and the sickly.’ ‘They also bludgeoned providers of exempted essential services such as watchmen, supermarket workers, food truck drivers and medical personnel, on their way to or from work.’
To shield themselves and their actions, they also stopped the media from monitoring their actions and assaulted journalists covering the police onslaught.
Much of this alleged abuse was effectively confirmed this week, when Kenyan president, Uhuru Kenyatta, apologized for violence by the police following the start of the curfew.
It was widely reported, for example, that police violence led to the death of a 13-year old who was shot while standing on his balcony. This, during police action to force people back into their homes. Among other organisations that have condemned police behaviour is Human Rights Watch, whose officials have warned that continued abuse of the sort being seen in Kenya could undermine the fight against the coronavirus.
The law society was initially concerned that their challenge to the police abuse might not be heard since the chief registrar of the judiciary, after consultation with the Chief Justice, had issued certain directives. These had the effect of closing the courts and denying public access ‘even in extreme and urgent cases’ that would require court intervention, according to the petition.
In the event, however, a preliminary hearing was held, with Judge Weldon Korir presiding. He certified the matter as urgent and issued an order compelling Hillary Mutyambai, inspector general of the police, to publish, in national newspapers, guidelines on the conduct of police officers whose task is to enforce the curfew.
He also prohibited Mutyambai – and by extension, the police – from ‘using unreasonable force’ in relation to the curfew. Further, the police were prohibited from interfering with media coverage of the curfew.
Finally, the judge set dates for filing further papers so that the matter could be heard, via an electronic platform, today – April 2.
In South Africa, where the Independent Police Investigative Directorate, IPID, is investigating at least three deaths allegedly at the hands of police since emergency lockdown regulations came into force, the non-governmental organisation, ‘Fair and Equitable Society’ (FES), has filed an urgent application in the high court, Pretoria, against the President and several cabinet ministers including those responsible for the police and the army.
At the start of SA’s lockdown, now at the end of its first week, the Chief Justice issued a clarifying statement to the effect that the courts would be open for any application challenging aspects of the emergency regulations, so FES did not have any initial hurdles of that sort to clear.
Lawyers acting for FES asked for the matter to be heard next week as a matter of urgency. They would argue for a declaration that the police and army had violated the constitutional rights of the people in South Africa by using ‘violence, excessive force, torture and assault’ in enforcing the country’s lockdown.
They also want to court to clarify that the lockdown did not suspend core constitutional rights, to order that the ministers observe and respect these rights, and to issue an interdict against the police and army preventing them from carrying out ‘any forms of torture, assault and punishment’ on people found violating the lockdown.
Their founding papers allege that since the lockdown came into operation, the police had been mistreating those they found outside. This included forcing people to do difficult and painful exercises across a long distance and in full view of other people, that they punched and hit people with their fists and whips even though they were inside their yards, that they shot people with rubber bullets, kicked people and killed one man with a service pistol when he acted contrary to the regulations by going out to a tavern to buy alcohol.
The police and army will be hard pressed to deny this behaviour as reports and video clips of their behaviour have been widely circulated.
The FES points out that the police and army had been urged by President Cyril Ramaphosa to act in a way that saved lives. He said they were to act ‘in the most understanding way, in the most respectful way, in the most supportive way.’ Ramaphosa told the security forces that the country will be looking upon them ‘as the defenders of our nation and you will need to restore trust and confidence.’
The President also called on them to act in a way that did not violate the right of the people and to carry out their duty ‘with respect’.
FES said members of the police and the army did not have a mandate ‘to publicly humiliate assault and punish’ people as they have done.’ Widespread violations were continuing and would not stop until members of the police and army were interdicted from doing so.
Meanwhile, in Nigeria’s Ogun state, the commissioner of police, Kenneth Ebrimson, has been checking up on the behaviour of his troops. According to local media, he warned his officers and other members of the state police ‘to be civil while enforcing the 14 day lockdown order’. He ‘admonished’ them to take the time to ‘explain the rationale behind the lockdown to people and persuade them to comply with the order rather than being harsh and brutal in their approach.’