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ANALYSIS: What does the law say about face masks in South Africa, Nigeria and Kenya?

Street scenes and shopping malls have changed across Africa. In a matter of weeks communities have adopted a new defence in the fight against Covid-19: face masks. 

Health authorities and governments around the world have urged people not to buy and wear medical masks to avoid creating a shortage for those who need them most - health workers.

But with the available evidence suggesting that simple cloth masks can play a role in slowing the spread of the new coronavirus, many authorities have taken to instructing citizens to mask up when outdoors. 

But how do the regulations differ? And is it a crime to not wear a mask in public? Africa Check team members in South Africa, Nigeria and Kenya investigated. 

South Africa: ‘No legal consequences’ for individuals not wearing a mask






Africa Check researcher Naledi Mashishi in Johannesburg, South Africa.


UPDATE: On 12 July 2020, South African President Cyril Ramaphosa announced that regulations on the use of cloth masks would be strengthened. 

Updated regulations state that cloth masks or coverings must be worn in places of work, when using public transport and when in a public building. They must also be worn in “any public open space” unless a person is doing “vigorous exercise” and keeps three metres away from other people. The definition of “vigorous exercise” will be decided by the country’s cabinet. 

“The new regulations still do not criminalise an individual who fails to wear a mask in public,” writes Constitutional law expert Prof Pierre de Vos. 

However a public transport operator, owner of a business or employer who fails to take reasonable steps to ensure compliance with these regulations could be fined or imprisoned.

“This means if you refuse to wear a mask in a taxi, a shop or mall, a public building or a school you are exposing the person in control of that space to criminal prosecution and even imprisonment,” writes de Vos.




South Africa’s strict lockdown restrictions were eased on May 1 2020. Two days before, the

Department of Cooperative Governance and Traditional Affairs published amended regulations

Section 5 of the disaster management act now says “a person must wear a cloth face mask or a homemade item that covers the nose and mouth when in a public space”.

A person will not be allowed to use public transport or enter a public building if they are not wearing a face mask. Employers must give appropriate cloth face masks to staff who have direct contact with the public.

Lungi Mtshali, spokesperson for the Department of Cooperative Governance and Traditional Affairs, told Africa Check researcher Naledi Mashishi that not wearing a mask in public was an offence. 

“The regulations say you have to wear a mask in public. You can be fined,” he said. But he could not say how much the fine was. 

But this was denied by South African Police Services spokesperson Vishnu Naidoo. He told Africa Check “it is not a crime if one doesn’t wear a mask”. 

Constitutional law expert Prof Pierre de Vos agreed. 

“No legal consequences are attached to not wearing a mask. This means the police cannot arrest you, fine you or otherwise punish you,” he said. “But I think it does mean that any shop can refuse entry if you do not wear a mask.”

Rhodes University dean of law, Prof Rosaan Krüger, backed this up. “In the absence of an explicit provision to make non-compliance an offence, it is not an offence.”

Nigeria: Old quarantine law allows for fines and imprisonment


Africa Check’s Nigerian editor David Ajikobi in Lagos.


Nigeria’s president Muhammadu Buhari announced the mandatory use of face masks or coverings in public spaces on 27 April.

“We will strictly ensure the mandatory use of face masks or coverings in public in addition to maintaining physical distancing and personal hygiene,” he said in a national broadcast. “State governments, corporate organisations and philanthropists are encouraged to support the production of cloth masks for citizens.”

The Nigeria Centre for Disease Control told Africa Check that this was a presidential directive. Nigeria’s Quarantine Act of 1926 allows the president to impose regulations to prevent the spread of dangerous infectious disease. 

Any person contravening the act’s regulations could be liable for a fine of N200 (about 50 US cents), imprisonment for six months, or both.

Nigeria's parliament is deliberating a new control of infectious diseases bill to repeal the old act.

The presidential directive is being enforced at local levels. 

On 25 April, Lagos state governor Babajide Sanwo-Olu announced it was compulsory to wear face masks in public. And in Abuja, the federal capital territory, motorists and pedestrians caught without face masks are now being arrested and prosecuted.

But legal practitioner Monday Ubani, a former president of the Ikeja branch of the Nigeria Bar Association, told Africa Check’s Nigerian editor David Ajikobi that any arrests, prosecutions and punishment had to be in line with the Quarantine Act. Anything else would be illegal.

“Whatever regulations the governors are making or punishment for not wearing masks in public places, penalties cannot be higher than those prescribed in the Act.” 

Kenya: Public health rules include penalties for not wearing a mask


Africa Check’s Kenyan deputy editor Vincent Ng’ethe is in Nairobi.


Kenya’s Public Health (Covid-19 Restriction of Movement of Persons And Related Measures) Rules state that “every person who is in a public place during the restriction period shall … use a proper face mask that must cover the person's mouth and nose”.

A gazette notice published by the Ministry of Health on 6 April imposes a fine of up to KSh20,000 or imprisonment of up to six months, or both, if the rule is violated. The police have been enforcing the rule across the country. 

Mugambi Laibuta, a lawyer specialising in constitutional law, told Africa Check’s Kenyan deputy editor Vincent Ng’ethe that the regulations applied to the whole country. 

“The only things that apply in certain areas are the restrictions on movement,” he added.

Allan Maleche, a lawyer who provides legal aid in public health matters, agreed. He told us that the rules require masks to be worn “whether it is a lockdown centre or a place that does not have any Covid-19.”




 

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