It is now acknowledged that the Ebola virus poses a high risk to Kenyans – news that spreads a chilling message beyond the reaches of the medical profession and into the legal sphere.
Kenya, being a major transport hub, receives about 76 flights a week from West Africa (the epicentre of the deadly virus).
The airlines concerned have finally succumbed to pressure to suspend flights from the affected regions, with Kenya Airways announcing that it has suspended all its flights from Sierra Leone and Liberia effective midnight Tuesday.
This development has exposed significant legal grey areas. The Government has responded to the threat by setting up isolation facilities for infected persons at Kenyatta National Hospital and Mbagathi District Hospital.
The Kenyan Medical Association, deeming this response inadequate, has called for quarantine of all passengers, whether infected or not, who fly in from West Africa. At this point, it would be useful to differentiate quarantine from isolation. While isolation refers to the separation of people who are already infected with a particular contagious disease, in the case of Ebola, quarantine is the separation of people who have been exposed to a certain disease, but are not yet infected.
The involuntary detention of passengers is justified by the all-so-common ‘public safety’ argument.
The Government has an obligation to protect the public, but it must not compromise the human rights of the individual.
A balance must be struck and Ebola must not and cannot be used as an excuse for unlawful and discriminatory detention of people.
The Constitution under Article 41 (1) (a) provides that every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care.
The Constitution also provides for every person’s right to freedom of movement and the right to have every person’s dignity protected and respected under Articles 39 and 28 respectively.
The Public Health Act, Chapter 242 of the Laws of Kenya, provides for matters pertaining to quarantine of exposed persons and isolation of infected persons.
As it stands, Kenya cannot be said to have an adequate legal framework pertaining to these matters.
Laws on quarantine and isolation need to be as specific as possible to ensure there is no infringement of rights without justifiable reasons.
The Model State Emergency Health Powers Act of the USA makes certain provisions that reflect this position.
The Act provides that States are required to protect civil liberties during public health emergencies, further providing that states are to ensure the following five threshold requirements: the individual must pose an actual threat to the public; the intervention must be reasonable and effective; it must be conducted in a manner that is in line with equal protection and due process; individuals must be provided with safe and comfortable conditions; and reasonable compensation for loss of income must be ensured.
Stay informed. Subscribe to our newsletter
The Kenyan Public Health Act mainly provides for the Cabinet Secretary’s power to restrict immigration or movement of persons, animals or things likely to introduce any disease in the country; surveillance of persons exposed to the infection; and burial of bodies of persons dying on board of vessels.
Many issues are left unaddressed.
The standard and conditions that should be maintained in areas marked as quarantine and isolation centres is not provided for.
The manner in which infected persons should be treated during periods of isolation or quarantine is also not captured in the laws.
It would be beneficial for the Kenyan Government to adopt the Siracusa Principles on the Limitation and Derogation of Provisions in the International Convention on Civil and Political Rights of 1985, into the legal framework which are thus: restriction is provided for and carried out in accordance with the law; the restriction is in the interest of a legitimate objective of general interest; restriction is strictly necessary in a democratic society to achieve its objective; there are no less intrusive or restrictive means available to reach the same objective; and restriction is based on scientific evidence not drafted or imposed in an unreasonable or otherwise discriminatory manner.
The Public Health (Port, Airport and Frontier Health) Rules provide for quarantine and isolation.
The regulations however, suffer from a number of shortfalls.
First, there are no clear set guidelines as to when quarantine or isolation is to be imposed; second, the provisions allude mainly to situations applying to persons coming into Kenya via certain vessels (Ships, Airplanes and Vehicles).
Third, there are no provisions as to how long persons under quarantine should be held or what legal recourse would be available to a person wrongfully held under quarantine.
The constitutional guarantee to highest attainable standards of health care also raises important questions, especially with the World Health Organisation giving the green light to administer experimental drugs and vaccines.
Apart from the fact that these drugs have yet to be tested on human beings, there is also the question of availability of the drugs. Since they have never been tested on human beings, the side effects are unknown even to science and perhaps situations where the drugs produce adverse results may arise.
Fighting disease is not only the province of medicine and thus must be borne by those responsible to safeguard the welfare of Kenyans.
The Standard Group Plc is a
multi-media organization with investments in media platforms spanning newspaper
print operations, television, radio broadcasting, digital and online services. The
Standard Group is recognized as a leading multi-media house in Kenya with a key
influence in matters of national and international interest.
join