BY PHOEBE WANJOHI.
Activist Okiyah Omtatah has urged the High court to suspending the government order requiring people to go for compulsory quaritine.
In his application the activist is further seeking an interim order prohibiting the Ministry of Health and their agents from implementing LN No. 46 of 3rd April, 2020, and LN Nos. 50, 51, 52 and 53 of 6th April 2020 pending hearing and determination of the case.
He alleges creeping fascism in the Republic of Kenya and challenges the constitutional validity of sections 11(1) & (4) and 14 of the Statutory Instruments Act, No. 23 of 2013 and the decisions made by the Government to require individuals to go into compulsory quarantine for public health protection without obtaining a magistrate’s order authorising the compulsory quarantine as required by law.
The decisions by the Government forcing people ordered into compulsory quarantine for public health protection in places other than of their own, voluntary choice or accommodation provided by the government, to meet the costs of their own confinement.
“Arbitrarily extending the period of compulsory quarantine for all individuals in a specified quarantine facility for public health protection beyond the period initially imposed and failure by the Government to ensure individuals who are detained for public health protection are accommodated adequately to guard against the spread of the disease while in such isolation,” reads the court paper.
The activist says that the threats and violations of the Constitution arise from the Government’s irregular and unlawful enactment through unconstitutional executive fiat bordering on fascism of legal Notice No. 46 of 3rd April, 2020 (The Public Health (Prevention, Control And Suppression of Covid-19) Rules, 2020) and legal Notice No. 50 of 6th April, 2020 (The Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Rules, 2020);
“Legal Notice No. 51 of 6th April, 2020 (The Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) (Nairobi Metropolitan Area) Order, 2020), legal Notice No. 52 of 6th August 2020 (The Public Health (Covid-19 Restriction of Movement Of Persons And Related Measures) (Mombasa County) Order, 2020) and legal Notice No. 53 of 6th April, 2020 (The Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) (Kilifi County) Order, 2020),” says the activist.
Omtatah argue that contrary to the express provisions of Section 27 of the Public Health Act 1921 (Cap. 242), the health cabinet secretary Mutahi Kagwe forced persons required to go into compulsory quarantine for public health protection to pay for their upkeep yet the law requires the State to foot their bills. In addition, some individuals in such quarantine have had their period of compulsory quarantine un-procedurally and unfairly extended, contrary to the provisions of the Fair Administrative Action Act, 2015.
The CS exceeded his powers to make regulations under Section 36 of the PHA by purporting to create criminal offences and penalties which is the preserve of Parliament and that none of the Regulations issued or purportedly issued under Section 36, PHA, define what COVID-19 is, despite the disease caused by coronavirus 2 (SARS-CoV-2), being new and previously unknown, both in law and as a health concern.
He adds that the recent Public Finance Management (Emergency Response Fund) draft Regulations, 2020, sought to define COVID-19 and coronavirus 2. This was in recognition the novelty of the new virus and that it could not be assumed or taken as a given, legally as well as in its health implications.
He further adds none of the legal or purported legal notices made under the PHA offer any definition of what COVID-19 is, thereby making them vague and legally unenforceable and tied to the lack of definition of what they are meant to cover is the lack of even cursory public participation.
“While am alive to the grave threat to life and, indeed, humanity, presented by the outbreak of COVID-19, especially as seen in other parts of the world such as Italy, Spain, the United States of America and the United Kingdom, it is still possible to meet the requirements of public participation in formulating possible responses to the threat at hand,”Omtatah adds.
The government has already recognised and demonstrated this need in undertaking public consultation and participation process, albeit with necessary modifications to take into account of the exceptional prevailing circumstances, in respect of the Public Finance Management (Emergency Response Fund) draft Regulations, 2020 and the Tax Laws (Amendment) Bill, 2020.
He argue that, while the upholding the principles of rule of law, as recognised by the Constitution of of Kenya, should inform every act by the State, their importance in a time of grave crisis, such as the one facing the country and, indeed, the world, cannot be over-emphasised. The petitioner firmly believes strictly adhering to these principles in dealing with and seeking to combat the spread of COVID-19 is, indeed, a matter of life or death, the very reason why they are part and parcel of Kenya’s national values and principles of governance.
Sometime in March 2020 the Government of Kenya declared that all persons arriving from abroad or suspected of exposure to the Corona Virus (COVID-19) were to be quarantined at government designated facilities at their own costs and on or about March 22, 2020, the government announced that individuals who were suspected of having been exposed to COVID-19 or who entered Kenya between that date and the suspension of international passenger flights on March 25, 2020 must undergo mandatory quarantine for 14 days at government designated facilities at their own costs.
In addition to unlawfully requiring people put in compulsory isolation for public health protection to pay for their confinement, contrary to Section 27, PHA. The government further broke the law by failing to ensure the people it had forced into quarantine were adequately accommodated.
“As a result of this grave breach of the law, individuals who were previously free of COVID-19 when they were ordered into isolation later tested positive of the virus. This fact was confirmed in the letter of April 3, f2020 from the Acting Director General of Health at the Ministry of Health”, he adds.
Several people were put under compulsory quarantine without order of a magistrate and were forced to pay for their upkeep contrary to Section 27 of the PHA.
Section 27 PHA, which provides for the isolation and detention, on a certificate signed by the medical officer of health and an order of a magistrate, of persons who may be infected with a notifiable infectious disease, expressly provides that such compulsory isolation must be at the cost of the local authority of the district where the person requiring the isolation is found.
” There is no power, under Section 27, PHA, for the government to require persons whom it believes are not accommodated in such a manner as adequately to guard against the spread of the disease to meet some or any of the costs of providing the required adequate accommodation and by making people in compulsory isolation for public health protection, the government is not only breaking the Constitution and the law by exercising powers it does not have, it is also undermining public health protection.
This is because people who suspect they may have been exposed to infections that present a danger to the public are unlikely to come forward and seek assistance if they believe they would be made to pay if they are deemed to require compulsory isolation.
