The Kenyan National Assembly is in the process of discussing a proposed law, the Pandemic Response And Management Bill in response to the coronavirus outbreak.
The motive of this law is noble and it basically provides a legal framework for the national and country governments to respond to pandemics. It contains detailed provisions of the same including structural and financial details. This is commendable.
The motives are good, but there are many gaps that may be problematic. Firstly, the definition of pandemic as “an infectious disease across international borders, “is very wide. For example simple diseases such as “common cold to more serious ones such as HIV, may fall under the definition of pandemic. This may open up the law to misinterpretation.
My second major issue with the Bill is that it seems punitive to landlords and employers. The assumption that is evident is that, a majority of landlords and employers have an upper hand over tenants and employees, an assumption which is not necessarily true.
There are many employers who had already been faced with serious financial challenges before the outbreak of Covid-19. To subject such an employer to a law as punitive as the proposed one, would mean that such employers would have to scale down.
While the law certainly protects employees and guarantees them job security, it offers struggling employers no solution. The law protects employees from termination during a pandemic period.
While I agree that employers should not terminate staff due to the pandemic, the wording of the Bill is open to abuse.
An employee who is terminated due to reasons other than the pandemic may find a loophole from the wording of this clause. Those who willingly dishonour their employment terms may find refuge in this law simply because it is a pandemic season.
The law also states that an employer cannot unilaterally force staff to take pay cuts. For this reason, the Bill’s provision that staff take unpaid leave for the duration of the pandemic is the most fair on both parties.
It will have a similar effect on landlords. Some landlords depend on rentals for their livelihoods. Others have taken mortgages and loans to invest in rental units.
The law protects tenants who are unable to pay rent due to a pandemic outbreak. It doesn’t protect or even consider the interest of landlords. Furthermore, this clause is subject to abuse.
For example a tenant who is a serial defaulter may take advantage of this provision to escape liability simply because it is a pandemic season.
The Bill also lacks soundness in its provisions on contractual obligations. It generally states that where a party cannot meet its contractual obligations due to the pandemic then some sort of relief is given under the proposed law. This doesn’t consider the already existing remedial measures such as force majeure which are already part of contract law. The provision in the Bill is extremely odd. Through this Bill, Parliament oversteps its mandate by interfering in private contractual matters.
The court which is the right forum to discuss issues of contractual obligations have in the past upheld the principle of sanctity of contracts.
By including this provision, the principle of sanctity of contracts would be compromised. The principle of sanctity of contracts means that the court recognises that its role is not to negotiate contractual terms for the parties.
While the Bill contains good motives, it is unfair and oppressive against landlords, employers and contracting parties. For this law to be fair, it needs to address the gaps.