Limitation of freedoms in offing over outbreak

As of Wednesday, this week, Kenya had confirmed seven cases of coronavirus. Since last week, many other African countries, including Tanzania, Somalia, Ethiopia, Congo, South Africa and Nigeria, had recorded their first cases of the virus.

Judging from what happened in China, Italy, South Korea, and Iran, Kenya had time to prevent an outbreak and plan a comprehensive response to contain it and save lives. Since January, coronavirus has put healthcare systems on their knees in countries considered as developed.

Last week, Kenya banned all public gatherings such as political rallies. It is curious then why by Wednesday places of worship were still open, yet evidence from South Korea's River of Grace Church shows how such places can exacerbate the spread of the virus.

Experts have already warned about the possibility of the disease hitting hard countries with less developed public healthcare systems such as most Sub-Saharan African countries that have challenges such as poverty, high HIV and Aids prevalence, poor water, and sanitation and crowded public transportation and housing.

Another challenge has been misinformation regarding the severity of the disease, its source, how it spreads, how to treat it and unfounded allegations that it somehow does not affect black people.

Increasing fatalities

Another fallacy is that it only kills about 3 per cent of those infected. However, this depends on whether the healthcare system in a country has the capability to absorb 20 per cent of those who will experience respiratory distress and therefore require specialised hospital care. If the hospitals are overwhelmed, the 20 per cent will not be able to get professional assistance and will likely die, thereby sharply increasing fatalities.

So far, the government has been issuing daily briefings and our media has done a commendable job informing Kenyans. In accordance with Article 35 and the right to receive information, the government and the media must commit to issue accurate and timely information which will be critical in maintaining public trust, order, and support strategies for fighting the pandemic.

Which begs the questions: Knowing what we know now regarding the virus, how it spreads, our weaknesses and learning from the experiences in China, Italy, South Korea, and Iran, what can we do to contain the spread of the virus to prevent an outbreak that may overwhelm our healthcare system? How will the measures potentially impact our rights such as the right to movement, assembly, work et cetera?

Dire consequences

The Constitution contemplates a time where certain rights and fundamental freedoms can be justifiably limited in order to deal with national crises such as disease outbreaks, natural disasters and even times of war. Given the dire consequences of what has happened, especially in Lombardy, Italy, we must begin contemplating these things to save lives.

Article 58 of our Constitution provides that a state of emergency may be declared when the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency. Such a declaration, according to the law, must be necessary to meet the circumstances for which the emergency is declared.

To avoid abuse of the situation, the law provides for parliamentary oversight, the Constitution requires that the declaration and any law under it must be prospective and not last longer than 14 days unless the National Assembly resolves to extend the declaration for no longer than two months.

Moreover, Article 24 requires any limitation of fundamental rights to be clearly and concisely written in law, necessary and proportionate and pursue a legitimate aim in an open and democratic society. The National Assembly should therefore begin to be involved in government plans for purposes of oversight and accountability. So far, Parliament has played a very minimal role in plans to mitigate the spread of the virus and ensure access to healthcare service to all.

Going by what has happened elsewhere, we will likely witness certain restrictions to freedom of movement which has a bearing on other things such as the right to work, among others. The government should begin to think how vulnerable groups will be catered for during this period.

Mr Kiprono is a constitutional and human rights lawyer. [email protected]