COVID-19 OUTBREAK: LEGAL GUIDE AS TO THE POWERS AND DUTIES OF THE STATE IN CURBING THE SPREAD VIZ A VIZ THE RIGHTS AND DUTIES OF THE CITIZENS

Quincy Jesse Kiptoo Ag

1.       Abstract

1.1.   Kenya is experiencing the early consequences of the Covid-19 outbreak. As a reactionary measure, other Countries such as South Africa, Nigeria, Zimbabwe and Uganda have, from the onset, imposed a total lockdown in their jurisdictions[2]. This is a radical measure meant to help curb the spread of the Covid-19 virus.

1.2.   On the other hand, Kenya, amongst other directives, has enforced a curfew as from 7:00 p.m. to 5:00 a.m. (partial-lockdown). This may be, arguably so, due the inability of the state to financially accommodate the populace in a total lockdown.

1.3.   It has been reported that the police are enforcing the lockdown in a violent manner. So much so that the Law Society of Kenya, vide petition No. 120 of 2020 (Covid 025), sought for and were granted the following orders by the High Court:

a.       The Inspector General was directed to publicize and file in Court the guidelines issued to the police in enforcing the Public Order (State Curfew) Order 2020 within 48 hours;

b.      The National Police Service was restricted from using unreasonable force in enforcing the curfew; and

c.       The National Police Service was restricted from interfering with the Media coverage of the curfew.

1.4.   There is therefore a pertinent need to briefly outline and explicate on what are the powers and the duties of the state during such a time. Inversely, it is imperative that the citizens are equally informed of their rights and duties as well.

1.5.   As ignorance of the law is no excuse, the writer intends to outline and analyze the public health laws so as to inform the readers of their rights and duties during this period.

2.      Introduction

2.1.   The Public Health Act of Kenya exists so as to provide for a framework of securing and maintaining public health at all times and more so, in times of an infectious disease outbreak.

2.2.   The State pursuant to the Constitution of Kenya has the mandate to provide citizens with adequate and sustainable health care systems and facilities. Article 43 (1) (a) posits thus:

“Every person has the right (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care”

Article 43(2) further posits:

“A person shall not be denied emergency medical treatment”[3]

2.3.   The framework referred to in the afore-stated Article is the Public Health Act. It defines an infectious disease as “any disease (not including any venereal disease except gonorrhoeal ophthalmia) which can be communicated directly or indirectly by any person suffering therefrom to any other person.” The test laid down for an infectious disease is thus:

a.       A disease; and

b.      Easily transmitted directly or indirectly from one person to another.

2.4.   Does Covid-19 meet the criteria posited above? It is submitted that Covid-19 surpasses the test. This is because, not only does it fit the threshold but it has also been declared as a pandemic by the World Health Organization[4]. Our State, through the Ministry of Health[5] and the Office of the President[6] have stated the same.

2.5.   The law had foreseen scenarios in which there might be an outbreak of infectious diseases such as the instant one. Ipso facto, as per Section 17(2) A of the Public Health Act, the following were the legally declared infectious diseases: Influenza, Relapsing fever, Blackwater fever, Encephalitis lethargica, Yellow fever, Kala-azar, Malaria, microscopically diagnosed within the municipality of Kitale, Bacillary dysentery and Amoebic dysentery within the municipality of Nairobi and Severe Acute Respiratory Syndrome (SARS)[7].

2.6.   What therefore are the powers and duties of the state and citizenry alike?

3.      Powers of the State during the Covid-19 Out-break.

3.1.   The state has the power of forceful entry and inspection of a premises. Where there is reason to believe that any person is suffering or has recently been exposed to an infectious disease, a medical officer of health may forcefully enter any premises and medically examine any person in such premises for the purpose of ascertaining whether such person is suffering or has recently suffered from any such disease[8].

3.2.   The State may order the disinfection of a premises or a public service vehicle. Where any medical officer of health is of the opinion that the cleansing and disinfecting of any building or part thereof, and of any articles therein likely to retain infection, would tend to prevent or check infectious disease, it shall be his/her duty to give notice in writing to the owner or occupier of such building or part thereof, specifying the steps to be taken to cleanse and disinfect such building or part thereof and articles within a time specified in such notice[9]. If the person to whom notice is so given fails to comply therewith, he/she shall be guilty of an offence and liable to a fine[10]; and the health authority or medical officer of health may cause such building or part thereof and articles to be cleansed and disinfected, and may recover the expenses incurred from the owner or occupier in default as a civil debt recoverable summarily[11]. The medical officer of health may also choose to defray the expenses[12].

3.3.   The State has the power to remove and take infected persons to hospital. Where, in the opinion of the medical officer of health, any person certified by a medical practitioner to be suffering from an infectious disease is not accommodated or is not being treated or nursed in such manner as adequately to guard against the spread of the disease, such person may, on the order of the medical officer of health, be removed to a hospital or temporary place which in the opinion of the medical officer of health is suitable for the reception of the infectious and sick and they shall be detained until such medical officer of health or any medical practitioner duly authorized thereto by the local authority is satisfied that he/she is free from infection or can be discharged without danger to the public health[13].

3.4.   The state has the power to isolate, or more popularly known as quarantine. Where, in the opinion of the medical officer of health, any person has recently been exposed to the infection, and may be in the incubation stage, of any notifiable infectious disease and is not accommodated in such manner as adequately to guard against the spread of the disease, such person may, on a certificate signed by the medical officer of health, and by order of a magistrate be isolated at the cost of the State[14]. The test of quarantine is therefore:

a.       Infected and/or exposed to an infectious disease;

b.      Certified by a medical officer; and

c.       Not accommodated in a manner likely to guard against the spread of the disease.

3.5.   The procedure to be followed is by way of a Certificate signed by a medical officer of health, which will be used to seek a Court order from a Magistrate. This procedure, given the aggressive nature of Covid-19, has been bypassed. Currently, any person who arrived in Kenya within the past 14 days or any person who has come into contact with a person who is infected or suspected to be infected with Covid-19 is subjected to a mandatory 14 days quarantine at select hotels and government facilities[15].

3.6.   The State has the power to prosecute offences related to transmission of the disease. Any person who: (a) while suffering from any infectious disease, willfully exposes himself/herself without proper precautions against spreading the said disease in any street, public place, shop, inn or public service vehicle, or enters any public service vehicle without previously notifying the owner, conductor or driver thereof that he is so suffering; or (b) being in charge of any person so suffering, so exposes such sufferer; or (c) gives, lends, sells, transmits or exposes, without previous disinfection, any bedding, clothing, rags, money or other things which have been exposed to infection from any such disease, shall be guilty of an offence and liable to a fine not exceeding thirty thousand shillings or to imprisonment for a term not exceeding three years or to both; and a person who, while suffering from any such disease, enters any public conveyance without previously notifying the owner or driver that he is so suffering shall in addition be ordered by the court to pay such owner and driver the amount of any loss and expenses they may incur in carrying into effect the provisions of the Public Health Act with respect to disinfection of the vehicle[16].

3.7.   Power to enforce precautions at our frontiers: When it is considered necessary for the purpose of preventing the introduction of infectious disease into Kenya, the Cabinet Secretary in charge of health may, by order regulate[17], restrict or prohibit the entry at its inland borders of any persons, any animal, article or thing[18],  

3.8.   Power to make further rules: Whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease, the Cabinet Secretary may make rules for all or any of the following purposes, namely—

(a) the speedy burial of the dead;

(b) house to house visitation;

(c) the provision of medical aid and accommodation, the promotion of cleansing, ventilation and disinfection and guarding against the spread of disease;

(d) preventing any person from leaving any infected area without undergoing all or any of the following, namely, medical examination, disinfection, inoculation, vaccination or revaccination and passing a specified period in an observation camp or station;

(e) the formation of hospitals and observation camps or stations, and placing therein persons who are suffering from or have been in contact with persons suffering from infectious disease;

(f) the destruction or disinfection of buildings, furniture, goods or other articles, which have been used by persons suffering from infectious disease, or which are likely to spread the infection;

(g) the removal of persons who are suffering from an infectious diseases and persons who have been in contact with such persons;

(h) the removal of corpses;

 (j) the regulation of hospitals used for the reception of persons suffering from an infectious disease and of observation camps and stations; and

(k) the removal and disinfection of articles which have been exposed to infection;

(l) prohibiting any person living in any building or using any building for any other purposes whatsoever, if in the opinion of the medical officer of health any such use is liable to cause the spread of any infectious disease[19].

3.9.   Mandatory requisition of equipment and/or buildings: Where an outbreak of any formidable epidemic disease exists or is threatened, it shall be lawful for the Director of Medical Services to require any person owning or having charge of any land or any buildings or dwellings, not occupied, or any person owning or having charge of tents, transport, bedding, hospital equipment, drugs, food or other appliances, materials or articles urgently required in connection with the outbreak, to hand over the use of any such land or building or to supply or make available any such equipment, subject to the payment of a reasonable amount as hire or purchase price[20]. Any person who, without reasonable cause, fails or refuses to comply with any such requirement shall be guilty of an offence[21].

3.10.                    Power to remove patient from vessel and treat on shore: Where any person on board of any vessel is suffering from any infectious or other disease and, in the opinion of the port health officer, is not accommodated or is not being nursed or treated in such manner as to guard adequately against the spread of the disease or to promote recovery, the port health officer may cause such person to be removed to a hospital or place of isolation on shore and there accommodated and treated for such period as may be considered necessary in the interests of the patient or to prevent spread of infection[22].

4.      Duties of the State

4.1.   Duty to inspect premises and examine people suspected to be suffering from an infectious disease[23]. This is a power as well as a duty in the public interest.

4.2.   Duty to provide means of disinfection: Any health authority may provide a proper place, with all necessary apparatus and attendance, for the disinfection of bedding, clothing or other articles which have become infected, and may cause any articles brought for disinfection to be disinfected free of charge, and any such direction shall be sufficient authority for a medical officer of health or sanitary inspector or person authorized thereto to destroy the same[24].

4.3.   Provision of transport/conveyance for infected persons: Any health authority may provide and maintain a carriage or carriages suitable for the transport of persons suffering from any infectious disease, and may pay the expenses of conveying therein any person so suffering to a hospital or other place of destination[25].

4.4.   Destruction of infected articles: Any health authority may direct the destruction of any building, bedding, clothing or other articles which have been exposed to infection from any infectious disease, or in the opinion of the medical officer of health are infected, and may give compensation for the same[26].

4.5.   Prompt internal reporting: Every medical officer of health shall immediately report to the Director of Medical Services by telegraph or other expeditious means particulars of every notification received by such medical officer of health of a case or suspected case of any formidable epidemic disease[27] more so, a suspected case of Covid-19.

4.6.   Duty to provide temporary supply of medicine: Any County Government may  provide or contract with any person to provide a temporary supply of medicine and medical assistance for the poorer inhabitants of their County, but may at their discretion charge for the same[28].

4.7.   Duty to provide a hospital. Any County Government may provide for the use of the inhabitants of its area hospitals or temporary places for the reception of the sick, and for that purpose may:

(a) themselves build such hospitals or places of reception; or

(b) contract for the use of any such hospital or part of a hospital or place of reception; or

(c) enter into any agreement with any person having the management of any hospital, for the reception of the sick inhabitants of their area, on payment of such annual or other sum as may be agreed on[29].

4.8.   Duty to employ a human rights based approach in all measures employed to combat the spread of Covid-19.

5.      Rights of Citizens

5.1.   The rights of the Citizens under the Bill of Rights survive such scenarios and are in full operation for all intents and purposes. It is important to note that, subject to Article 25 of the Constitution of Kenya, these rights are not absolute and may be limited in accordance with Article 24 of the Constitution of Kenya. The rights that may not be limited are: the right to a fair trial, prevention from torture cruel, inhuman and degrading treatment, right to an order of habeas corpus and freedom from slavery or servitude  

6.      Duties of Citizens

6.1.   Duty to report and/or notify authorities of the presence or suspicion of presence of an infectious disease[30] this equally applies to all ports of entry[31].

6.2.   Duty to disinfect public service vehicles. Every owner or driver of a conveyance shall immediately provide for the disinfection of such conveyance after it has to his knowledge conveyed any person suffering from an infectious disease; and if he fails to do so he shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings; but no such owner or driver shall be required to convey any persons so suffering until he has been paid a sum sufficient to cover any loss or expenses incurred to disinfect[32].

6.3.   Duty to disinfect rental premises. Any person who knowingly lets for hire any dwelling or premises or part thereof in which any person has been suffering from an infectious disease must disinfect the same to the satisfaction of a medical officer of health, failure to do so amounts to an offence which attracts a liability of a fine not exceeding eighty thousand shillings[33]. This applies equally to the owner or keeper or a hotel or a boarder house who lets any room or part thereof to any person[34]

6.4.   Duty to comply with the mandatory requisition by Director of Medical Services as per paragraph 3.9 above.

6.5.   Duty to follow rules outlined by the Cabinet Secretary in charge of health.

6.6.   Duty to not intentionally transmit or infect others with Covid-19 or any other defined infectious disease. This constitutes an offence which attracts a sentence of imprisonment not exceeding three years and/or to a fine of Kshs. 30,000[35] or better yet, both.

6.7.   Duty to avail oneself to be tested upon suspicion or manifestations of symptoms of Covid 19.

6.8.   Duty to be indoors from 7:00 p.m. to 5:00 a.m. as per the curfew directive currently in operation.

6.9.   Duty to provide hand sanitizers, water and soap at malls, buildings or estates.

6.10.                    There is a category of citizens who due to the services they offer are exempted during the curfew. These include medical doctors, ambulance personnel and the media etc. As they must move around during the curfew, they are guided by select duties under the Public Order Act. These include:

a.       Moving around with a written permit;

b.      The holder of a permit shall at all times during the hours of darkness carry a light visible at a distance of twenty-five feet[36];

7.      Conclusion.

7.1.   It is the writer’s expectation that the paper illuminates the powers and duties of the state in relation to rights and duties of its citizens during this outbreak. The same was extrapolated from the public health laws inter alia. Kindly note that this paper is not exhaustive in terms of the powers, rights and duties of the concerned parties. Stay safe.

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[1] The writer is a Litigation Associate at Tharuma Trevisan Advocates

[2] https://www.france24.com/en/20200331-millions-enter-lockdown-in-nigeria-zimbabwe-as-africa-steps-up-coronavirus-fight Accessed on 2^nd April, 2014

[3] These rights are dependent on the resources available to the state. We have had sight of draft regulations dubbed The Public Finance Management (Covid-19 Emergency Response Fund) Regulations 2020. This fund is meant to established to collect donations from the private sector and pay cuts from members of the public service. It is meant to help in the fight against Covid-19.

[4] https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 Accessed on 2^nd April, 2020.  

[5] The Ministry of Health Press Releases

[6] Executive Order No. 2 of 2020

[7] Cap. 130 of 1948, Subsidiary Legislation Number 49/2003

[8] Section 21 and 38 Public Health Act Cap 246

[9] Section 22 (1) Ibid

[10] Not exceeding two hundred shillings

[11] Section 22(2) Ibid (n 9) ; Summarily means summary procedure. Trial as a rule, should precede judgment. Under summary procedure, instead of going into trial, there is sought for by the plaintiff a summary judgment. This procedure is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defense, to obtain a quick and summary judgment without being necessarily kept from what is due to him by delaying tactics of the defendant

[12] Section 22(3) Ibid

[13] Section 26 Ibid

[14] Section 27 Ibid ; See also Section 68(2)

[15] Supra n 5

[16] Section 28 Supra n 8 ; See also Section 167

[17] This may be through impose requirements or conditions as regards the medical examination, detention, quarantine, disinfection, vaccination, isolation or medical surveillance or otherwise of persons entering, or the examination, detention or disinfection or otherwise of such persons as aforesaid or of articles or things introduced into Kenya at its inland border or any part thereof

[18] Section 71 Ibid n 16

[19] Section 36 Supra n 8

[20] Section 42(1) Ibid

[21] Section 42(2) Ibid

[22] Section 67 (1) Ibid

[23] Section 21 Ibid

[24] Section 24 Ibid

[25] Section 25 Ibid

[26] Section 23 Ibid

[27] Section 41 Ibid

[28] Section 34 Ibid

[29] Section 32 Ibid

[30] Section 18 (1) Ibid

[31] Section 61 Ibid posits thus: Upon the occurrence on any vessel of any case of or death from any notifiable infectious disease, or of such other disease as the Minister may prescribe, or of any sickness or mortality among rodents or other animals on any vessel or within the harbor area suspected to be due to any formidable epidemic disease, the port health officer shall forthwith inform the medical officer of health of the area in or adjoining which the port is situated of the occurrence and the measures taken or intended to be taken in connection therewith.

[32] Section 29 Ibid

[33] Section 30 (1) Ibid

[34] Section 30 (2) Ibid

[35] Section 28 (a) Ibid

[36] Section 8 (1) Public Order Act