Court orders state to make public Sh1.7b US Ebola quarantine facility deal

The High Court in Nairobi has ordered the Kenya Kwanza government to make public the Sh1.7 billion deal with the US for the Ebola quarantine facility within seven days.

At the same time, Justice Patricia Nyaundi extended orders to now block the President William Ruto-led administration from either accepting or entertaining Americans or foreigners who are infected by the deadly virus into the country until the cases filed by the Katiba Institute, the Law Society of Kenya, and Fred Isaboke are heard and determined.

She said that the Attorney General Dorcas Oduor or her representatives had failed to appear in the Katiba case or respond despite being served with the court papers.

“I am satisfied that the notice of motion was served by Michael Kioko. The respondent has failed to respond and appear. The order will issue in terms of H and I. The second respondent will furnish the public with the agreement within seven days and file responses,” ruled Justice Nyaundi.

However, the AG and the Ministry of Health were represented by Thande Kuria in the other two cases.

Katiba’s lawyer, Malidzo Nyawa, told Justice Nyaundi that it was unfortunate that the government had opted to stay silent despite claims that it was constructing the controversial quarantine facility at the Laikipia Military base.

“It is disappointing that the AG has decided to give these cases a wide berth. We physically served them. We have been unable to access the barracks despite the information that the facility is being built, even with the court orders stopping the exercise,” said Nyawa.

 On the other hand, Charles Kanjama, Wathuta Mwangi and Jacjohn Owino insisted that there was a need to compel the government to disclose the details of the deal.

In the meantime, Laikipia County also joined the case as an interested party. Its lawyers, Levi Munyeri and Lydia Gichuru, argued that Laikipia was in the dark about the deal and only learned about it from the media.

“The applicant was never consulted or prior-informed about the deal to enable some form of consultation and public health preparedness to safeguard the interest of the People of Laikipia. It has learnt through the media of a deal between the Kenyan National Government and the United States of America to establish an Ebola Quarantine and Treatment in Nanyuki within Laikipia County for USA Nationals,” claimed Munyeri.

In the case, Katiba argued that it was ironic for the Ministry of Health officials to accept a disease that would kill and cause problems to the public, owing to the government’s self-sacrifice to the USA.

The rights lobby group asserted that despite the World Health Organisation (WHO) warning that the disease emanating from Congo is a moving killer with no approved cure and with limited treatment options, Kenya Kwanza opted to risk Kenyans’ lives for a secret deal, which was unmasked by the New York Times, causing an uproar that prompted the Health Cabinet Secretary Aden Duale to admit in response.

“The Government of Kenya, through a secret agreement with the government of the United States of America, is about to open its borders to US citizens who have been affected by this deadly disease.”

“This level of constitutional carelessness and institutionalized defiance of the Constitution is a threat to our constitutional order. It is a demonstration of the executive arm of the government being derelict of its obligations. The Constitution requires the government to take precautionary measures to prevent its citizens from being exposed to deadly diseases,” read the lobby group’s papers filed before the court on Monday by lawyer Joshua Malidzo.

Katiba sued the Attorney General, Dorcas Oduor and Duale. It also cited Kelin-Kenya as an interested party.

 Katiba stated that the arrangement between the President William Ruto-led administration and that of Trump has not been subjected to institutional accountability, public participation, parliamentary oversight, or full disclosure of its health, environmental, and security implications.

Further, the lobby said that there was also no indication that any environmental and health impact assessment had been undertaken to ensure, owing to the risk involved.

It argued that health is a devolved function; hence, counties ought to have also been consulted and involved. However, Katiba said that it is also unclear whether governors and members of county assemblies gave a green light.

So far, Kenya has not recorded any Ebola cases.

In court, Katiba stated that it was sheer abandonment of the mandate to protect Kenyans from harm’s way, enticed by an unknown token.

“The facts as presented disclose a potential and clear infringement of the right to life under Article 26 of the Constitution. The State is advancing arrangements that expose the population to a highly lethal infectious disease without demonstrated adherence to strict constitutional safeguards. Ebola is widely recognised as a disease with a high mortality rate and rapid transmission potential, and any State action that increases the risk of exposure to such a hazard directly implicates the constitutional protection of life,” said Malidzo.

Katiba’s Executive Director, Nora Mbagathi, said that Kenya is ill-equipped to deal with infectious diseases.

 She said that Ebola requires facilities classified as a Biosafety Level Four facility (BSL 4 facility) in addition to highly trained personnel to deal with the infectious disease.

Nevertheless, Mbagathi said that, unlike the USA, Kenya has facilities that can only deal with basic biosafety procedures that are low risk, from levels one to three. She further said that these are labs from high schools, universities and the highest being labs in national hospitals to test from coughs to HIV.

To add salt to the injury, she claimed that Kenya has only three level-three facilities.

She asserted that if America is rejecting her own to protect the majority, Kenya cannot be the alternative ground.

“This development follows public statements by the United States Secretary of State, Marco Rubio, emphasising that the primary objective of United States foreign policy is to prevent the entry of Ebola into the United States. In response, Kenya appears to have been selected as an alternative containment site, thereby externalising infectious disease risk management to the Republic’s territory,” said Mbagathi.

In addition, the LSK and Fred Isaboke also challenged the deal. LSK’s lawyer, Jack Owino, said that the deal entailed putting up an initial capacity of 50 beds, expandable to 250.

“The threat to the constitutionally guaranteed rights to life, health, dignity and a clean and healthy environment is real, imminent and incapable of adequate remedy after the event. Time is of the essence,” argued Onyango.

Isaboke’s lawyer, Chege Kamau, argued that the decision to allow Americans to be treated in a facility built in Kenya is s unreasonable, irrational, and illegal and in gross violation of the Constitution of Kenya.

“The petitioner avers that it is incongruous and illogical for the respondents to enter into an arrangement which exposes Kenyans to the Ebola virus, while the country has a struggling if not a crippling health care system,” argued Kamau.