The Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 are constitutional.

Law Society of Kenya v Attorney General & another; National Commission for Human Rights & another (Interested Parties)

Petition No 132 of 2020

High Court at Nairobi

JA Makau, J

June 25, 2020

Reported by Beryl Ikamari

Constitutional Law - institution of a constitutional petition - doctrine of separation of powers, the principle of ripeness and the political question doctrine - constitutional challenge raised against subsidiary legislation which was under parliamentary scrutiny pending parliamentary approval - whether a constitutional petition was premature as it raised questions that were still under consideration by the relevant constitutional organs.

Constitutional Law - doctrine of judicial restraint - decisions involving merit and policy determinations - where a petition involved questions relating to the propriety of rules made on the basis expert opinion and the exercise of delegated legislative mandate by a Cabinet Secretary - whether the court should exercise restraint and decline to undertake a merit or policy review as related to the propriety or otherwise of those rules - Constitution of Kenya 2010, articles 94(5) and 94(6); Statutory Instruments Act, No 23 of 2013, section 11.

Statutes - subsidiary legislation - imposition of penalties under subsidiary legislation - extent to which penalties could be imposed under subsidiary legislation - whether imposition of penalties under the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 was ultra vires the Public Health Act -  Public Health Act (cap 242), section 36; Statutory Instruments Act, No 23 of 2013, section 24(5).

Constitutional Law - fundamental rights and freedoms - right to equality and freedom from discrimination - whether subsidiary legislation which required all persons, including the poor, to wear masks when visiting public places was discriminatory - Constitution of Kenya 2010, article 27.

Constitutional Law - national values and principles of governance - public participation - circumstances under which public participation requirements would not be applicable in the making of legislation - rules made to contain the spread of COVID - 19 - whether subsidiary legislation made to contain the spread of COVID - 19 had to meet public participation requirements - Constitution of Kenya 2010, article 10; Statutory Instruments Act, No 23 of 2013, section 5A (2).

Brief facts

The petitioner challenged the constitutionality of the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 (the Rules) on various grounds. They said that the prescription that persons should wear masks or face penal consequences for failure to do so discriminated against the poor. They added that the proposition that the bodies of those that died of the virus should be cremated did not accord the deceaseds’ dignity or respect to their families. Further, they stated that the rules were not subjected to Parliamentary approval. Additionally, they said that section 36 of the Public Health Act did not allow the relevant Health Cabinet Secretary to create offences or prescribe penalties and doing so made the Rules ultra vires the Public Health Act.

The petitioners also contended that the Rules violated socio-economic recognized under article 43 of the Constitution as the omission to supply rations and face masks to persons affected by the disruption of the transport system was a violation of their right to food, adequate standard of living and health. Furthermore, the petitioner said that regulation 11 of the Rules violated the right to a fair trial as it set a penalty without creating or defining the offence. The petitioner also argued that that the requirement that both private and public vehicles carry 50% of their licensed capacity was unclear and subject to misinterpretation by law enforcement officers. 

Issues

1. Whether under the doctrine of separation of powers, the principle of ripeness and the political question doctrine, constitutional challenges raised against subsidiary legislation which was under parliamentary scrutiny, were justiciable.
2. Whether under doctrine of judicial restraint, parliamentary immunity, and parliamentary privileges the court lacked jurisdiction to interfere with an ongoing parliamentary process of the scrutiny of statutory instruments.
3. Whether the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 should be declared void for lack of public participation.
4. Whether imposition of penalties under the of the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 was ultra vires the Public Health Act
5. Whether the impugned the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 were discriminatory in that the required all persons, including the poor, to wear masks when visiting public places

Held

1. Under article 259 of the Constitution, the Constitution should be interpreted in a manner that promoted its purposes, values and principles and advanced the rule of law and the human rights and fundamental freedoms in the Bill of Rights and contributed to good governance. Articles 3(1), 258 and 165(3)(d) which conferred upon the High Court jurisdiction to interpret the Constitution should be read together with articles 6(2), 94, 95 and 109 of the Constitution and section 11 of the Statutory Instruments Act. The national values and principles of governance recognized under article 10 of the Constitution were also of importance when interpreting the Constitution.
2. The power to legislate was, in accordance with the constitutional doctrine of separation of powers, the preserve of the Legislature but it could also be delegated to persons or bodies in accordance with article 94 of the Constitution of Kenya which provided for the legislative authority of Parliament.
3. Where constitutional functions were bestowed on a certain institution or organ of the state, the court had to give that organ sufficient time of leeway to discharge its constitutional mandate and only accept an invitation to intervene when that organ or body had demonstrably been shown to have acted contrary to its constitutional mandate or in contravention of the Constitution.
4. Under articles 94(5) and 94(6) of the Constitution it was clear that the legislative mandate of the minister was a delegated authority and the minister had to exercise that delegated legislative mandate in accordance with articles 94(5) and 94(6) of the Constitution. The Statutory Instruments Act clarified the rationale and procedure for laying subsidiary legislation before Parliament. Section 11(4) of the Statutory Instruments Act provided that a statutory instrument only remained in force pending Parliament’s scrutiny, when it was laid before the relevant House of Parliament in accordance with the Act. 
5. Within the prescribed timeframe, the impugned Rules were laid before the relevant Houses of Parliament. The Rules were also published in the Kenya Gazette as required by statute. The legal presumption of constitutionality was applicable to all pieces of legislation, including the impugned Rules.
6. At the time of filing the petition the impugned Rules were still under scrutiny by the relevant constitutional organs. The questions raised in the petition had therefore not reached constitutional ripeness for adjudication by the court. There was no actual or live dispute for court determination.
7. By virtue of the concept of ripeness, separation of powers and political question doctrine, the court would not delve into the issues raised. The Rules were before Parliament which was the forum in which the petitioners and the 1^st interested party had a chance to raise the issues in the petition.
8. Under the Statutory Instruments Act, the relevant parliamentary committee would consider issues as to whether the impugned Rules were constitutional, had any legal effect for lack of public participation or were vague in penal sanction or whether they complied with the Statutory Instruments Act.
9. The petition was premature; the court could not supervise the workings of Parliament. The relevant parliamentary committee was yet to have its deliberations and make its recommendations.
10. The court had jurisdiction to review the manner in which National Assembly could carry out the parliamentary scrutiny process in respect of the impugned Rules but in light of the doctrine of judicial restraint and lack of the conclusiveness of the process, the court would not intervene with an ongoing process nor question the parliamentary committee's findings unless there was evidence that the National Assembly disregarded the Constitution and the law. 
11. The Parliamentary Powers and Privileges Act underpinned the independence of the legislature and protected the appropriate speaker, the leader of majority party, the leader of minority party, chairpersons of committees and members for any act done or ordered by them in discharge of their functions of their office within the provisions of the law. Nonetheless, any person aggrieved by any contents of a report adopted by a parliamentary committee had the right in the instance to appeal against the recommendations of the House. The petitioner would not be prejudiced if the Rules went through parliamentary scrutiny as it had a right to appeal when the relevant report was finalized and tabled for adoption.
12. Section 5A(2) of the Statutory Instruments Act contemplated instances when statutory instruments could be made without prior public consultation.  When the Rules were published COVID 19 infections were rapidly escalating with more people losing their lives and there was urgent need for immediate action to contain the spread of the virus, one of which was the formulation of legal regulations to restrict the movement of people in and out of infected zones, which was premised on the expert opinion of public health practitioners.
13. The issue of restriction of activities within an infected area generally had been subjected to public participation and the petitioner was one of the entities that had been consulted. Additionally, the Government had a right to put in place precautionary and restrictive measures in order to slow the spread of COVID - 19 in line with the precautionary principle and the Public Health (Prevention, Control and Suppression of COVID – 19) Rules.
14. Public participation was not always applicable as a blanket requirement. It had to be considered on a case to case basis and had to depend on the circumstances existing at the time in question. Public participation was not an applicable requirement at the time the Rules were made and the Rules could not be unconstitutional on public participation grounds.
15. Section 24(5) of the Statutory Instruments Act allowed for the imposition of a penalty for the breach of a statutory instrument not exceeding twenty thousand shillings or such term of imprisonment not exceeding six months, or both. Therefore, regulation 11 of the impugned Rules, which included the imposition of a penalty, was not ultra vires the enabling legislation, the Public Health Act.
16. Criminal sanction and penal policy were within the constitutional competence of the Legislature and the 2^nd respondent while exercising delegated legislation mandate had that competence. The petitioner could not challenge it because it had a different view on appropriate sentences and penal sanctions.
17. The licensed capacity of a vehicle was capable of determination. The requirement that all vehicles should carry passengers at 50% of its capacity was also one that could be determined. Under section 3 of the Traffic Act as well as section 4(2) of the National Transport and Safety Act, 2012 the National Transport and Safety Authority (NTSA) was responsible for the registration and licensing of motor vehicles. The licensed capacity was therefore as approved by the NTSA during registration and licensing.
18. It was common knowledge that face masks helped protect against transmission of COVID - 19, particularly where infected persons were pre-symptomatic but could still transmit the virus to others. For that reason, it was fundamentally important for people to wear masks when in public places so as to flatten the curve and eventually overcome COVID - 19 altogether.
19. The Rules did not require Kenyans to purchase single use surgical masks or to wear a certain mask design. Kenyans had the alternative of wearing homemade masks of various types as long as they covered their mouth and nose when in public places.
20. The Rules were not discriminatory in any way. The Rules served the legitimate aim of protecting everyone equally from the threat of COVID - 19.
21. It was not irrational to limit the number of persons being transported in private and public vehicles and also to require a lone driver in a vehicle to wear a mask to limit instances of transmission of virus with any subsequent person who come in contact with the subject vehicles. That restriction was proportionate and reasonable in an open and democratic society noting that the freedoms under the Constitution were enjoyed only to the extent that they did not pose a risk to others.
22. The public interest lay in saving the lives of Kenyans and protecting their wellbeing against COVID - 19, and in effect, the priority level attributable to the relevant government cause in doing so should take precedents over the unsubstantiated allegations by the petitioner. The Rules were reasonable, proportionate and constitutional and were reflective of the steps taken world over in the fight against COVID - 19. COVID - 19, which entailed a pandemic covering the whole world with the resultant deaths in Kenya and several other countries.
23. The petition was based on general averments. The claim that the Rules negatively affected the transport business was unsupported and it was clear that the Rules did not completely ban or stop transport operations. Similarly claims of the petitioner that many people were stranded and could not travel were not supported by evidence. Further claims that the Rules were abused with respect to burials were not supported by relevant particulars. Claims of abuse of the Rules did not render the Rules unconstitutional as abuse was unlawful.
24. Considering the question as to whether a lone driver should wear a mask was a merit question. The petitioner in seeking such a merit and policy review had not provided evidence and was wrongfully asking the court to substitute its views with those of the 2^nd respondent, who had the mandate to consider such issues.
25. The court could not sit on appeal on the question of the merits or otherwise of an opinion by health experts in steps needed to contain a pandemic. The court could not even substitute its own judgment for that of experts in the relevant fields provided that the decision informed by the expert advice was relevant to the subject matter in issue.
26. Public interest should trump any individual or personal interest of the petitioner whether in private law or in public constitutional law. Additionally, there was a public law duty of the court not to interfere with the constitutional functions of public bodies traceable to the constitutional doctrine of separation of powers.

Petition dismissed. Each party was to bear its own costs.