COVID-19 (Coronavirus): What are the Legal implications of the global pandemic

As businesses worldwide navigate the challenges brought on by the rapid spread of COVID-19 (coronavirus), it is now more essential than ever that corporations be ready with solutions to address risk issues as they arise. Beyond the obvious health repercussions, this global pandemic has presented major disruptions for global businesses. Some have had direct commercial impacts on specific sectors, with interruptions to supply chains, challenges in meeting contractual obligations and implications under funding arrangements. Others are universal: workplace health and safety obligations, the impact of travel restrictions and containment measures, increased record keeping, protecting sensitive personal data and business continuity planning.

One thing has become clear: we can expect disruption for some time to come, and businesses need a legal team that can guide them through a crisis. There is an urgent need for comprehensive legal proposals of transition and continuity despite Covid-19.

The Covid-19 outbreak in Kenya has caused widespread disruption to daily lives and the manner in which businesses operate. It is evident that urgent legislative responses are required to cushion against the far reaching effects that Covid-19 has and continues to have on individuals and businesses in Kenya.

While there is much that can be learnt from what others have done globally, most laws and regulations are local in nature and therefore the country needs to find Kenya-centric mechanisms to help ease the effects of the Covid-19 pandemic.

As a country our goal is not only to mitigate the health challenges but also to provide businesses and consumers with a mechanism of transition to a time when the economy returns to a semblance of stability or as people put it "normal". As front-line workers manage the health crisis, citizens are increasingly placing their hopes on the government to address other socio-economic considerations.

There is urgent need for comprehensive legal proposals of transition and continuity despite Covid-19. Parliament needs to act now to enact an omnibus miscellaneous amendment statute to address all the required legislative interventions until the end of Covid-19.

They must do so in a measured way, balancing between the need to cushion businesses and citizens to the extent possible on the one hand but preserving the fundamentally open and market-based economic structure that is the basis of the Kenyan economy, and thinking through the long-range consequences of the actions they take together.

In all cases, Parliament must avoid populist measures which in general will have a short term placebo effect but cause long term economic carnage.

In a "free" and "democratic" country such as the nation of Kenya, fundamental rights and freedoms are guaranteed under the Constitution. Any limitation of a right or freedom may only be done in accordance with the law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors. It is true in law and in life that extra ordinary times call for extra ordinary measures. In the wake of the Corona Virus pandemic, Nations have taken extreme measures rallying their citizens to maintain social distance, to sanitize their hands regularly, to stay at home and further limiting movement by all modes of transport except for essential services. Countries like Ethiopia and Japan have gone to the extent of declaring a state of emergency. 

Kenya's response has been cautious occcassioning a gradual limitation of rights and freedom. When the final roll is called, we'll be able to judge the effectiveness or otherwise of the measures taken by our government to try and curb the spread of the dreaded disease. As for now, the enforcement of the government's laid out rules and regulations and their legal implications on the common mwananchi reamains to be a big challenge. Especially in a counrty where police brutality has been the norm for years-on-end. One shudders to think of the impact when the police implement rather ambiguous orders as has been the case in the past and since the first case of the virus was reported

Hard cases make bad law. It is no different for emergency periods. The implementation of the law in extreme situations is usually haphazard and often will trump properly laid out legal principles established in times of peace and tranquility. The president of the Republic of Kenya, H.E. Uhuru Kenyatta, in one of his addresses stated that ‘we are war and we must win! Indeed, we must win but a highly infectious respiratory disease is no ordinary war. In fact, medical personnel are the soldiers of this war. Untrained police men without protective gear are powerless against an unseen virus. And yet, a government directive like this one is heavily dependent on the police to enforce it. The likely success of enforcement of the order will be highly dependent on the slow spread of infections or voluntary obedience by citizens. Nevertheless it behoves on the government to  respond quickly and thick innovatively. For example, how will the police enforce an order against a sick person unwilling to go into quarantine? Criminal law modes of effecting arrest will no longer be effective and thereby the police will require new equipment that enforces the law while eliminating the risk of infections. In the absence of this, the law will be toothless and it is no unforeseen that lawlessness will increase. Already there are reports of increased muggings and gender based violence cases. It is timely for the country and the counties to use technology for policing and law enforcement purposes. Other countries have considered the use of drones, image recognition software and the use of mobile applications. This in itself introduces the question of further regulation to avoid trespassing on the rights of individuals especially beyond the present period of threat.

The right to a fair hearing is a Constitutional guarantee under Article 50 may not be limited under any circumstances as encapsulated by Article 25. Does this provisipon include the circumstances of a pandemic? If it does, the reality of the times at hand is that every human person at this time is vulnerable to the virus and courts have been forced to go virtual which inadvertently limits the right to a fair trial especially for the marginalised groups in society who have no mechanisms of accessing a virtual court room. A virtual court room in itself presents a myriad of challenges to the fulfilment of the right to a fair trial.

The second arm of this issue is the viability of enforcing court orders. Are they able amidst the present restrictions on movement and lockdown measures to obey traditional pre pandemic orders such as mandamus, injunctive relief and so on. This will require courts in the present circumstances to overstep their mandate and create orders that are not encapsulated in the present laws. This will occasion delay to justice and subsequent denial thereof.

In the end, a few things are permanent but we are always guaranteed that change is constant. We must adapt and more so the national and county governments must respond to the present issues and to the changes occasioned by the pandemic that will outlast the present times.