How far is too far during a health crisis?
- Limitation of rights to health, dignity privacy and access to information can only be by a law cognisant of our national values.
- We must breathe life into our Constitution. Without that, it remains a piece of paper and not the culmination of decades of negotiation for a better Kenya.
Since Kenya recorded its first Covid-19 case on March 12, 2020, a day after the World Health Organisation (WHO) had declared the disease a pandemic, the government has put in place extensive unique public health measures.
It has adopted a ‘test, isolate and treat’ policy, imposition of a dusk-to-dawn curfew, banning of international flights, restriction of movement, closure of learning institutions, encouraging people to work from home and washing hands regularly and observe social distancing.
Limitation of rights is expected. Nonetheless, public health measures must protect individual rights and secure public health.
On March 23, the government introduced mandatory quarantine for all the people travelling into the country, a shift from the erstwhile self-quarantine policy.
Quarantine as a public health measure involves the restriction of movement or separation from the rest of the population of healthy persons who may have been exposed to the virus, intending to monitor their symptoms and ensure early detection of cases.
But implementation is fraught with challenges due to lack of a clear and transparent strategy. The abrupt announcement caught many unawares.
Besides expensive hotels and deplorable government facilities was confusion over the charges and protocols.
The quarantine period was often extended beyond the initial 14 days, seeing some people spend more than 30 days for inability to pay.
The relief of quarantine at government facilities being made free has been short-lived with people still being detained there until they foot the bill.
Another problematic measure is the countrywide 7pm-5am curfew imposed on March 25. From an initial 30 days, it has been extended twice for 21-day periods.
It has been tainted by police brutality, which is blamed for six deaths on the first night. We are confronted with a new virus and, as such, the response may not be seamless.
However, some mistakes are avoidable, especially those that instil fear instead of trust from the public.
If the Constitution was fully implemented, many of these difficult questions could have been answered.
The health function has been devolved since 2013 but not enough has been done to put mechanisms in place for coordination and cooperation, resulting in compromised health systems.
This gap is an opportunity to flesh out the bumps through enactment, adoption and implementation of legislation for the management of epidemics and pandemics.
This will allow the country to revisit outdated laws such as the Public Health Act of 1921 and seek to incorporate a rights-based approach to it.
Limitation of rights to health, dignity, liberty, freedom of movement, privacy and access to information, all impacted by mandatory quarantine, can only be by a law cognisant of our national values.
Mandatory quarantine is not only for the benefit of the individual but also to secure public health, and to do so at the cost of the individual is a violation of the Constitution and the law.
Detaining those unable to pay for mandatory quarantine has been ruled unconstitutional by the court.
We must breathe life into our Constitution. Without that, it remains a piece of paper and not the culmination of decades of negotiation for a better Kenya.
Ms Were, a lawyer, is a tutorial fellow at the University of Nairobi. She supports the sexual and reproductive health programme at the Kenya Legal and Ethical Issues Network on HIV and Aids (Kelin). @nemowere