Disregard for rule of law during pandemic may end up being the norm

It is Milton Friedman who asserts that there is nothing as permanent as a temporary government programme. This truism should prepare us for life post-Covid-19. In the last three months since the virus mutated from an outbreak in China’s Hubei province into a global pandemic, governments all over the world have initiated far-reaching programmes, principally to quell the pandemic. 

The effects of many of these governmental interventions has been to expand the reach of government into the private sphere, and in many instances abuse human rights and generally claw back on individual freedoms. When the coronavirus blew up in Wuhan and China applied formidable lockdown protocols, including the use of face recognition software that located every Wuhan resident wherever they went and identified who they met, most in the West criticised this show of ‘Chinese despotism’.

No wonder Italy initially laughed off calls to apply invasive lockdown measures until the pandemic got out of hand and they applied measures hitherto inconceivable in liberal Europe. That is all in the past. Most governments have extended their reach into private space in similar ways. While many of these measures have been deemed necessary, there are serious concerns that these temporary measures will, like Friedman’s ‘temporary’ programmes, define the role of government in citizen’s life in the post-Covid future.

The most obvious arena of government overreach has been in the extensive retention by government of intrusive personal data. To facilitate effective contact tracing so as to manage the epidemic, many governments are either requiring citizens to provide their personal data including their movements in government databases or using existing private and public e-platforms to mine the data. While this may be necessary in this season, it is inevitable that without strong oversight, this information will be used by government to keep track of citizen’s conduct for nefarious purposes. Secondly, in many jurisdictions, central governments have used the opportunities granted by Covid-19 to expand their mandates vis-à-vis local governments. While it is true that pandemics and emergencies are generally best managed at a macro level, the reality is that even powers that would be best exercised by local governments are being taken over by national governments with little or no involvement of the local administrations.

In Kenya, the Ministry of Health operates as if health was never devolved. The Treasury has forgotten that counties are entitled to their revenue allocations as a matter of constitutional right and operates as if it is the ultimate proprietor of public funds which it can dole out to Counties, reduce or increase at will. Even the Council of Governors speaks meekly lest it be seen as greedy and unpatriotic. Counties, which have to manage local health interventions and oversee local health facilities, have to hope for goodwill from busy Nairobi.

Only the naïve expect the national government to release many of these powers once the pandemic is over. On the human rights front, the situation is dire in many jurisdictions. While many in the security sector behave honourably, deaths from police brutality compete with those from the virus. People arrested after curfew and unable to pay their way out have been hauled to police stations and quarantine centres at their risk. In the few times as you traverse the countryside, you encounter white-coated fellows taking people’s temperatures at various stops. I am informed that those whose temperatures are above 38 degrees are sent back to where they are coming from.

This and many similar actions make little sense and have no foundation in law, but hey, it’s corona season. That mwananchi is acquiescing with these blatant disregards for the law is terrifying. While these actions make sense now, they unfortunately cement an attitude of State lawlessness and overreach that will easily become the norm, even in safer times. This reality demands vigilance by citizen groups and non-State actors, including the media, to ensure that we do not create a monster State that will devour us long after Covid leaves our shores. 

 

-The writer is an advocate of the High Court