By Duncan Ondimu
Measures announced by the Government of Kenya on March 15, 2020 with a view to dealing with the spread of corona virus (COVID-19) have been met with elation as well as distrust in some quarters. Among the measures announced by President Uhuru Kenyatta, were the barring of all persons coming into Kenya from countries with reported corona virus cases, self-quarantine of persons entering Kenya in the past fourteen days from the date of the announcement, and suspension of learning in education facilities.
The Ministry of Health has described corona virus (COVID-19) as “… a new respiratory disease which is highly contagious… spread mainly from person to person.” The Public Health Act defines “infectious disease” as “any disease (not including any venereal disease except gonorrhoeal ophthalmia) which can be communicated directly or indirectly by any person suffering therefrom to any other person.”
While the President did not declare a State of Emergency, it should be noted that the President under Article 132(4)(d) may do so. One of the circumstances that may lead to such a declaration is what could be regarded as public emergency. Corona virus pandemic is one such situation.
On his part, Chief Justice David Maraga announced measures taken by the National Council on Administration of Justice (NCAJ), including that prisoners and remandees will not be presented before court; any arrests carried out will be dealt with at the police stations in accordance with guidelines to be issued by the Inspector General of Police; the suspension of appeals, hearings and mentions in criminal and civil cases; suspension of execution proceedings; suspension of open court proceedings; and a review of bail terms for prisoners and arrested persons. Similar measures have been issued by the Indian Judiciary, with the Indian Supreme Court restricting its functioning to urgent matters.
Do the measures announced by the President and the Hon. Chief Justice pass the legal threshold?
Article 2(6) of the Constitution of Kenya, 2010 provides that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Article 11(3) of the International Covenant on Civil and Political Rights (ICCPR) provides that the right to liberty of movement and freedom to choose residence, including freedom to leave any country, including one’s own, may be restricted for several purposes including public health. Under Article 19, ICCPR provides that the right to information may be restricted for protection of public health. The right to peaceful assembly, and freedom of association, may also be restricted for the purposes of protection of public health. Regionally, the African (Banjul) Charter on Human and Peoples’ Right contains similar provisions to ICCPR.
Article 117 of the Treaty establishing the East African Community (EAC) requires partner states to co-operate in matters of health activities within the community. Article 118 of the Treaty further requires states to take joint actions towards controlling pandemics and epidemics. However, so far there has been no indication of collaboration by countries within the EAC Region in addressing the spread of corona virus.
Article 10(2)(b) of the Constitution provides national values and principles of governance to include human dignity. It is no doubt that the health of all Kenyans is part of human dignity and the Government of Kenya bears the ultimate responsibility in ensuring that all Kenyans have access to health services.
One of the economic and social rights provided under Article 43 of the Constitution, is the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. Article 43 further provides that a person shall not be denied emergency medical treatment. Article 43(1)(c) provides that consumers have the right to the protection of their health, safety, and economic interests. Further Article 53(1)(c) provides that every child has a right to health care.
The Ministry of Health suspended all public gatherings, meetings and events. The purposes of the cancellation was to reduce the risk of corona virus through limiting human contact. The restriction on the right to assembly as already submitted is enshrined under international legal instruments which form part of the laws of Kenya.
The measures taken by NCAJ as announced by the Hon. Chief Justice, will have an effect on various aspect of court processes. The rights of litigants especially right to a speedy trial will be affected. One of the rights that may not be limited is the right to fair hearing. However, the right to fair hearing must be viewed in different aspect in view of the corona virus pandemic.
The Public Health Act legally empowers Ministry of Health authorities to take actions for the purposes of controlling spread of infectious diseases. These powers include isolation of persons exposed to an infection, quarantine of vessels, power to designate any place as a quarantine area, power of entry on any vessels, power in regard to restriction or ban on immigration into the Country. Part IV(c) of the Act contains special provisions Regarding Formidable Epidemic, Endemic or Infectious Diseases.
In the case of ‘Daniel Ng’etich & 2 others v Attorney General & 3 others’  eKLR, Lady Justice Mumbi Ngugi stated, “… the Public Health Act is intended to safeguard, as its name states, public health. It imposes a duty on local authorities to ensure that persons who are suffering from an infectious disease are properly accommodated and treated, and that if they are not so properly accommodated and treated, they are isolated so as to prevent the spread of the infectious disease which they need treatment for.”
Justice Mumbi further addressed the legality of isolation and provided how it should be done. She stated, “The WHO Guidance provide that isolation or detention should be limited to exceptional circumstances when an individual:
“-is known to be contagious, refuses treatment, and all reasonable measures to ensure adherence have been attempted and proven unsuccessful;
-is known to be contagious, has agreed to ambulatory treatment, but lacks the capacity to institute infection control in the home;
-is highly likely to be contagious (based on symptoms and evidence of epidemiological risk factors) but refuses to undergo assessment of his/her infectious status.”
Where it is determined that involuntary isolation or detention is the only reasonable means of safeguarding the public, the Guidelines state that it is essential to ensure that the manner in which isolation or detention is implemented “complies with applicable ethical and human rights principles” as set out in the Siracusa Principles.
The WHO Guidance further provide that “in the rare event that isolation or detention is to be used, it must take place in adequate settings, with appropriate infection control measures,” and “reasonable social supports should be provided to isolated patients and their dependants, taking into account the local system’s capacity.”
The corona virus situation presents the country with a unique situation where conflict exists on the need to protect rights of individuals and the right of the general public to be protected from an infectious disease such as COVID-19.
The measures taken by the Government of Kenya are for the protection of the entire country and such circumstances are for the greater good of the entire country not just individuals.
Measures taken by the Government of Kenya are fully backed by various legal provisions as pointed out above. The Public Health Act is the primary source of legal provision that gives the Ministry of Health legal backing to take actions deemed necessary during public health emergency such as what the Country is facing at the moment. It is the duty of all of us to ensure that we adhere to the guidelines issued by the Ministry of Health. This will go a long way in ensuring that the pandemic is contained.
-Writer is Principal Prosecution Counsel at ODPP. The views and opinions expressed in this article are his own, not those of his employer.