Corona Virus (COVID – 19) COVID – 19 is an infectious disease caused by a newly discovered corona virus. Infectious diseases are a major practice area of contemporary public health. Laws that govern infectious diseases are peculiar and have certain characteristics. For instance, the public health actions undertaken to control infectious diseases collide with individual rights.
Following its outbreak (COVID -19) in Wuhan China in the last quarter of 2019 and its spread across international borders with the number of people who have tested positive for the virus exceeding 1.85 million, according to the data compiled by Johns Hopkins University as of 12th April, 2020.
As of 23rd June 2020, Kenya had recorded 4797 confirmed cases, with 1680 recoveries and 125 deaths. There has been in forced cessation of movement in and out of Nairobi, Mombasa, Kwale, Mandera and Kilifi Counties until 6th June, 2020. There has been prohibition on all gatherings and mandatory curfew between 7pm and 5am until 6th June, 2020 subject to further directives.
This article therefore seeks to discuss and examine laws concerned with surveillance of infectious diseases/ legal epidemiology and whether there is a clash of rights between right to health and civil rights in Kenya under the current circumstances.
Constitution of Kenya 2010 Article 2 (4) (6) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Article 19 (1), (2), (3), (a), (b) & (c) Rights and fundamental freedoms
Article 24 (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
Article 43 of the Constitution of Kenya 2010 is in synchrony with all the International Laws, declarations and guidelines that bind Kenya.
Article 24 of the Constitution requires any limitation of rights to be by law, in pursuit of a legitimate aim and must be proportionate. it therefore follows that fundamental rights can only be curtailed under limited circumstances with legal justifications.
‘An action that is to affect constitutional rights must be based on the law and be limited by the principle of proportionality’
Public Health Act (PHA), Cap 242, is the primary law on infectious diseases in Kenya. The Act places a mandate on health authorities to take all possible lawful actions in a bid to prevent any infectious diseases. The PHA establishes the Central Board of Health whose main function is to advise the Cabinet Secretary for Health (CS Health) on all matters affecting public health within Kenya. It also establishes a Medical Department tasked with amongst other duties, guarding against the introduction of infectious diseases into the country from outside as well as obtaining information concerning the infectious disease in Kenya and from neighboring countries and periodically publishing the same. An infectious disease should be declared as Notifiable Infectious Disease (NID) and a medical practitioner is required to inform the nearest health medical officer as well as those who live within the proximity of the a patient of the same and any precautions that need to be taken to prevent the spread. Failure to issue the said notices is an offense under the PHA.
The medical officer can then; search a premises, medically examine any person found there if they have reason to believe a person exposed to or suffering from an infectious disease is, or was on the premises, having the said premises cleaned and disinfected, destroying building, bedding or other articles, moving an infected person to a hospital or putting an exposed person in isolation by an order of a magistrate.
The costs related to suppression or prevention of the infectious diseases is borne by the health authority. However, the cost of isolating a patient is borne by the local authority where the person resides. The PHA criminalizes acts of willfully spreading an infectious disease by the infected person and/or a person tasked with caring for them and places a fine of up to Kshs. 30,000 and/or up to a three- year prison term.
The CS-Health may prohibit communication between anyone on board an aircraft or vessel with the shore until pratique is granted. A health officer may board a vessel, inspect any of its sections, and examine and/or ask any person on board any question for the purpose of establishing the existence of an infectious disease. Such powers must however be lawful and constitutional.
Once a particular disease is categorized as a NID through a ministerial order, the same should be published in the Gazette and in a bid to promote international surveillance, a notification is required to be sent to the WHO by Kenya within twenty-four hours of detection, as regards any event within the country that might amount to an international public health emergency. Through this, Kenya is able to uphold Transparency of the Public Health Management System.
Public Preservation Security Act, Cap 57 (Revised-2012) is another comprehensive legislation canvasing all facets of security within the country ranging from public health crises which include infectious diseases and outbreaks resulting in pandemics and epidemics. Public security may be preserved through the issuance of regulations by the President. Pursuant to Section 4 of the Act, the said regulations in relation to public health may provide for; restriction of movement (into, out of or within Kenya), imposition of curfews: prohibition of assembly, meeting, association or society; the control and regulation of transport by land, air or water; the control of trading and of the prices of goods and services, including the regulation of the exportation, importation, production, and any necessary or expedient action for the preservation of public security. Security can be interpreted not only in terms of threats of crime but also those of public health. This Act therefore compliments the Public Health Act.
Political dimensions Politics has to do with the practice of administering public affairs. It is undoubted that COVID – 19 pandemic has affected the political and economic systems of countries globally. The impact of the virus in a country’s politics cannot be downplayed. It is hard to predict how long the pandemic will last and going by the measures being implemented by governments, massive resources will be injected in sustaining the economy whilst also trying to tackle its further spread and prevention, possibly through the discovery of a universal vaccine.
The COVID – 19 pandemic presents an opportunity for citizens to test the legitimacy of their governments. It is time for the Kenyan government to act timely and decisively tin mitigating the effects of the COVID – 19 pandemic. The pandemic has exposed the deficiencies of public health systems in many countries and Kenya is not an exception. Kenya was already grappling with various issues prior to the pandemic including but not limited to widespread poverty, weak public health systems, and high cost of living, which are bound to intensify. To counter the effects of COVID -19, citizens must work harmoniously with the government and trust in the authority of the government to impose controls within legal parameters.
Interventions or clash of civil rights and liberties? On 25th March 2020, the President in the fight against the spread of corona virus, put in place a curfew between 7pm to 5am; a move which was criticized for creating a clash of rights between right to health and civil rights. The main question raised was whether public health concerns are justifiable grounds for the limitation of fundamental rights in the manner that the same has been enforced. Public health laws are aimed at supporting the control of infectious diseases by playing two key roles; one, proactive or preventive roles by improving access to medication, screening, education, counseling and other strategies that aim to minimize exposure to disease. Secondly, reactive roles: supporting access to treatment, and authorizing health departments and health care providers to limit contact with infectious individuals and to exercise emergency powers in response to disease outbreaks.
Where public health laws authorize interferences with freedom of movement, the right to control one’s health and body, privacy, and property rights, they should balance these private rights with the public health interest in an ethical and transparent way. Public health powers should be based on the principles of public health necessity, reasonable and effective means, proportionality, distributive justice, and transparency. In particular, the interventions must be consistent with statistics as communicated by the Cabinet Secretary for Health. In Constitutional Petition No. 120 of 2020; LSK v. Inspector General of Police & 8 Others  the Learned Justice Weldon Korir held that a curfew is heavy artillery that should be deployed with circumspection. Since it affects constitutional rights and fundamental freedoms, it ought to be premised on a substantive law. It is important to appreciate that a curfew does not only upset the people’s way of life, but it also negatively impacts constitutional rights and fundamental freedoms. Some of the rights limited by a curfew are the freedom of movement, the freedom of association, freedom of worship and the freedom of assembly. Even without the curfew, the insidious nature of corona virus has robbed us of some aspects of the rights of association and assembly. It is also obvious that curfews limit the hours for earning a living hence limiting socio-economic rights, especially for the vulnerable members of society. It is therefore important to identify the likely negative impacts of a curfew beforehand and put mitigation measures in place. It is also important for those empowered to impose curfews to swiftly lift them if the damage they cause to society far outweighs the benefits. “The only difference between rights and restrictions are that the restrictions can be challenged on the grounds of reasonableness, democratic practice, proportionality and societal values amongst other factors whereas rights are to believers spiritual, God given and inalienable and to the non-believers changeless and the eighth wonder of the world.” Nyamu J. Where a statute(s) is likely to restrict personal rights and freedoms, it is important to put in place ethical principles which include;
Public health necessity: coercive powers should be exercised on the basis of a demonstrable threat to public health. Mandatory physical examination, treatment or isolation should require a reasonable suspicion that the person is contagious or could pose harm to others. Reasonable and effective means; the specific measures adopted by governments must be appropriate to prevent or reduce the threat. Governments should monitor the effectiveness of public health interventions and ensure that they are based on sound science. Proportionality: Governments must strive to ensure that there is a reasonable fit between the coercive measures imposed on individuals, and the public health benefit that they seek to achieve. Governments should adopt the least burdensome measure from among the measures that are available and reasonably appropriate to mitigate the risks in question. Restrictions that are “gratuitously onerous or unfair” may “overstep ethical boundaries” Distributive justice: the risks, benefits and burdens of public health interventions should be shared fairly vaccines, or other benefits. Trust and transparency; the public should have an opportunity to participate in the formulation of public health policies, and governments should give reasons for policies and decisions that restrict individual freedoms. Openness and accountability are essential to generating public trust and are likely to improve public health decision-making. Without public trust and voluntary cooperation, governments will find it harder to achieve their goals and to act in the public interest.
Legal epidemiology is the scientific study of law as a factor in the cause, distribution and prevention of disease and injury. Laws and policies are essential to public health issues. In the wake of COVID -19, legal epidemiology informs how the law can be utilized as a tool for better health outcomes. Public health law focuses on what the law says, and legal epidemiology focuses on what the law does. So, what are the next steps that ought to be taken? We need to have better sewerage systems, better housing and so on. What should be done in the event that obligations towards these are not met by the relevant authorities. Notably, the basis of legal epidemiology is largely founded on surveillance of these infectious diseases. So how can the law be used to control the COVID -19 pandemic? As has been illustrated herein above, Kenya can implore various restrictions and measures in a bid to have better health outcomes.
In conclusion, failure to consider legal epidemiological approach may in fact not only continue to diminish the country’s capacity (both resource and technical) but also expose it to greater debt obligations and negative foreign policy implications as has been the case with China.
For example, vulnerable populations should not be targeted with restrictive measures, nor excluded or given lower priority in the allocation of treatment,
Eddy Nicholas Ombudo Orinda is a PhD Candidate – International Cooperation in the Fight Against Infectious Diseases.