COVID-19 Curfews: Kenyan and Australian Litigation and Pandemic Protection

Historically and etymologically, curfews are public health measures imposed to guard against risks to health and safety. On occasion they have been deployed oppressively, disproportionately and without proper regard to their ramifications. It is important that they not be used during a pandemic unless there is sufficient medico-scientific reason to conclude that they will serve a constructive purpose and that they are the least restrictive available governmental response. Inevitably, they impact adversely on a variety of human rights, particularly freedom of movement. They isolate and inhibit human connection. However, in the context of a worldwide pandemic causing terrible loss of life, there are occasions where they may be a necessary adjunct to these restrictions. This article identifies a variety of scenarios in which curfews have been imposed on different populations and identifies legal challenges that have been made to them. In the context of the COVID-19 pandemic it reviews the Kenyan judgment of Law Society of Kenya v Mutyambai [2020] eKLR and the Victorian Supreme Court judgment of Loielo v Giles [2020] VSC 722. It contends that the carefully reasoned decisions in each instance constitute an important reassurance that decision-making about a lengthy curfew in order to reduce the spread of the COVID-19 virus was reasoned, rights-aware and suitably responsive to the risks posed.