The Covid-19 pandemic in Kenya has taken a turn for the worst as days after the anniversary of our first case on the 12th of March 2020, the country recorded its highest positivity rate of 22% which jumped from only 2% in January 2021. In March 2020, we saw the government introduce a series of rules and directives which disregarded statutory procedural processes, use of mandatory quarantine as punishment for alleged breaches of the law, deployment of police who used unreasonable force in the enforcement of curfew, and disproportionately affect vulnerable communities through the use of preventive measures put in place.
What began as a health crisis quickly morphed into an economic, human rights and governance upheaval. In March 2021, we came full circle as we saw a return to excessive law enforcement in the country on account of the third wave of the virus, which has led to a surge in the number of people testing positive and thrown the country back into a state of disarray as poorly resourced health facilities grapple with the influx of cases.
Weak Leadership and Political Opportunism
While the initial months of the pandemic were characterised by excessive law enforcement and use of mandatory quarantine as punishment, these issues improved as we learned more about Covid-19 and due to push back within the civic space in Kenya. To manage compliance with Covid-19 directives a Special Enforcement Unit comprising the National Police Service, and officials from the National and County Government was established. Despite these measures, laxity among the ruling class proved to be where the pandemic turned and hypocrisy in leadership has perhaps been the most damning failure.
Political campaigns baptized ‘super-spreader rallies’ being held across the country fuelled the surge of Covid-19 infections as they attracted large audiences creating an environment for the abrogation of Covid-19 protocols. The increase in politicking was caused by the upcoming 2022 presidential elections and a political initiative geared towards efforts to amend the Constitution of Kenya 2010. Parliament’s independence also came into question with members of parliament and county assemblies organising and participating in political rallies woefully unaware of the damaging role it was playing in the spread of Covid-19. Healthcare workers and the public at large are now suffering the consequences of this reckless and irresponsible behaviour.
The Ministry of Health (MoH)) went through significant criticism around its failure to provide adequate information at the start of the pandemic and this begun to improve with more comprehensive information around preparedness of the nation to manage the Pandemic. However, during the third wave we have seen a reversion of announcements to just testing and vaccine numbers. The significant work put in by civil society to push for more comprehensive information has been eroded.
The Covid-19 pandemic vaccination strategy was scheduled to be deployed over an 18-month period in three phases. The first phase should serve 1.25 million people majorly consisting frontline healthcare workers; the second phase deployed to 9.7 million Kenyans above the age of 50; and the final phase reserved for the most vulnerable groups in the country. This strategy has been abandoned and seemingly adapted with previously undisclosed populations falling into the definition of frontline workers including teachers, uniformed personnel, religious leaders, diplomats, UN staff and political leaders. Further exacerbating this is persons using back door tactics to receive the vaccine early despite not fitting the prescribed criteria
As at 23rd April 2021, 822,651 persons have been vaccinated. These comprise: 152,469 of the 208,418 (73%) healthcare workers targeted for vaccination; 126,322 of the targeted 330,671 (38%) teachers; and 66,677 security personnel; all receiving their first dose. Other, targeted communities included in that number are persons aged over 58. The haphazard deployment strategy coupled with the derailed supply of vaccines raises concern over whether the government can provide vaccinated persons with a second dose of the vaccine. Though having received around one million doses, vulnerable citizens risk losing out on the vaccine if strategies are not employed to broaden inoculation coverage as rapidly as possible.
Parliament Missing in Action
Parliament has continued to rubber stamp the actions of the Executive and has in some instances wholly exempted some of the Covid-19 rules from scrutiny pursuant to Section 14 of the Statutory Instruments Act. Therefore, despite being mandated under the Constitution to facilitate public participation, Parliament has allowed this and its oversight role to be reduced to a cosmetic exercise which has unsurprisingly led to public outcry. As of 27 March 2021, government directives imposing movement restrictions and an extended and modified curfew have been put in place in response to the high positivity rates in the country. The executive has validated an illegal process by publishing the rules without parliamentary approval, once again undermining the rule of law. Public participation requests have become 24-hour alerts relayed to only a few select persons or organizations to tick a compliance box which cannot constitute meaningful public participation.
In order to cushion Kenyans against economic shocks caused by Covid-19, Parliament endorsed and passed the 2020 Tax Laws (Amendment) Bill on 25 April 2020 which enabled Kenyans to enjoy Covid-19 tax reliefs in 2020. In 2021 the country has reverted to pre-Covid tax rates, removing all tax concessions as well as bringing to an end cash transfers to poor households. At the beginning of this pandemic the government sought to shield Kenyans from the economic impact of the pandemic; this time however, the country is back to where it started a year ago, except without a safety net. The President’s address announcing the directives to arrest the third wave was silent on any contingency plan or a comprehensive framework to deal with the economic fallout from the third wave and its response.
The misuse and misappropriation of government funds is a recurring theme within the Kenyan health sector and this pandemic has proved no different. Given the large donations being made to fight coronavirus, the government failed to keep track of funds and as a result over 2 billion dollars was mismanaged and awarded to politically connected individuals and businesses by the Kenya Medical Supplies Authority, the state corporation mandated to procure and distribute drugs and medical supplies for prescribed public health programs. Although a parliamentary committee on health investigated these allegations, this has not resulted in repercussions despite the committee’s incriminating recommendations and increased oversight measures. Furthermore, President Kenyatta gave investigative agencies 21 days to conclude investigations, these orders fell on deaf ears as no prosecution has taken place to date.
Judicial Innovation: A Work in Progress
The Judiciary rolled out the country’s novel e-filing system in July 2020. This digital migration was dictated by the trajectory of the Covid-19 pandemic which saw a steady increase in the number of positive cases in the country. Thankfully the wheels of justice could turn once again, albeit insufferably slowly. Since scaling down its operations in March 2020, the already overburdened judicial system has continued to face a backlog of cases including those initiated by civil society and members of the public seeking to expose the ultra vires conduct of the Executive and protect the rule of law. Many of these time sensitive cases, filed under the stamp of urgency remain unresolved.
The unequivocal digital divide in Kenya has been stretched further as the marginalized and vulnerable groups of litigants are being left behind with no clear mitigation plans in sight. Access to both electricity and internet particularly within rural communities and informal settlements brings to the fore the old adage of the haves and the have nots. Currently, litigants, judges, court staff and users alike rely on a set of practice directions which provide a framework for the functioning of the remote system however, requests are being made by the legal fraternity to develop a proper framework in the form of a Bill to better shield the digital courts from abuse.
Heightened Marginalisation of Vulnerable Communities
The country is also fighting a second pandemic dubbed ‘the shadow pandemic’ which refers to the violence being perpetrated against women and girls. Globally, data shows that there has been a surge in cases of gender-based violence since the onset of Covid19. In April 2020, civil society organizations sent an advisory opinion to government which urged the taskforce on Covid-19 to ensure that Kenya’s Response is gender responsive. Despite this the country was slow to act and Kenya experienced a spike in gender based violence cases, increase in unintended pregnancies among teenagers, and contraceptive stock outs. In late October, the government finally took heed of requests and enacted the Protection Against Domestic Violence Rules 2020 to expedite complaints of suspected domestic violence cases, the implementation of these rules is yet to be seen.
Healthcare workers, despite being vulnerable to infection, have found themselves in a continuous row with the government that has resulted in a series of strikes by doctors, nurses and clinical officers. The strikes have focused on the National and County Governments’ failure to provide a conducive and safe working environment through low-quality personal protective equipment (PPE’s) and a failure to provide health insurance and isolation and treatment facilities for healthcare workers. Additionally, there have been reports that infected healthcare workers have had to attend to patients instead of isolating putting patients at risk of contracting the virus.
The Kenyan government recognised that a food crisis was inevitable if actions were not taken to protect supply chains and distribute food to vulnerable populations from households that would be devastated economically. However, what followed in the weeks after the government enacted the Covid-19 directives in 2020 was unemployed Kenyans scrambling for food donations amidst a pandemic and financial assistance offered to a few with no clear implementation plan or adequate transparency and accountability measures in place. Therefore, many in need were left to fend for themselves. The foregoing coupled with a poor supply of water needed to combat the virus, meant that the governments lack of preparedness culminated into a socio-economic crisis. Despite these lessons, the measures put in place in March 2021 were silent on securing food and water supply to vulnerable families and communities.
Shortly after, schools in the country were abruptly closed, the Ministry of Education quickly developed the Kenya Basic Education Covid-19 Emergency Response Plan which outlines interventions meant to enhance the prevention of the spread of the pandemic and respond to educational needs during and after the Covid-19 crisis. The plan acknowledged that the disruption of learning particularly impacts children with disabilities and financially disadvantaged girls and boys from informal settlements who cannot access remote learning tools among other challenges. Learning institutions were reopened in January 2021 and promptly shutdown again in March due to the third wave, the country already had a great task ahead to bridge the gap in equity, access, and quality of education further widened by the pandemic; and with learning institutions closed again, it is very difficult to tell how long it will take to recover.
The government lost the opportunity to utilize a rights-based approach that centred the most vulnerable and marginalised communities at the beginning of the pandemic response; and measures to address the third wave have taken a similar if not worse tangent. As a result, there has been a clear imbalance in upholding the socio-economic rights of citizens whist still ensuring public health objectives are met. The Covid-19 pandemic constituted a critical juncture for the government to promote and strengthen democratic principles, instead, the lack of community involvement, weak leadership and inefficient judicial and parliamentary oversight among others is set to undo years of progress.
From Paternalism to Participation: A People-Centred Government
The Covid-19 pandemic has accelerated democratic backsliding and order has been pursued through a paternalistic lens. Public participation, one of the cornerstones of good governance, has been set aside and replaced with a state-centred approach illustrated by increased policing and weak parliamentary oversight mechanisms meant to hold our law enforcement officers accountable. This has left citizens at the mercy of an ailing governance system instead of at the forefront of all decision-making processes. The country is now experiencing déjà vu as the government enforces the second partial lockdown without learning from past mistakes by failing to cushion citizens from the economic fallout, provide sufficient information, secure healthcare workers and access to healthcare facilities – all this resulting from opportunist politics.
Civil society is being ignored and funding for advocacy interventions targeted towards epidemics such as HIV and TB has been diverted to Covid relief initiatives putting gains over the past few decades in danger. This has reaffirmed the need to reflect on how women and other vulnerable groups should be protected during a time of crisis.
On a positive note, Covid-19 spurred the change needed to accelerate the country’s digital transition. Several innovations have been developed to attend to people who are being treated for Covid-19 and reduce and monitor transmission through the use of contact tracing applications. As the country begins to prioritize the revival of its economy, information and communication technologies are playing a pivotal role in combatting the pandemic and catalyzing the adoption of digital interventions. Poor adherence to the law by Kenyan citizens is indicative of a lack of trust in our government. As such, to secure accountability, there needs to be more exploration of the use of technology to ensure better civilian oversight and participation to promote a people-centred approach to governance.