A Commentary On Covid-19 And The Public Health Act Of Kenya

James NyihaSenior Partner, Nyiha, Mukoma & Company Advocates

Ever since the first case of COVID-19 was confirmed in Kenya on the 13th of March 2020, Kenyans have been accustomed to receiving daily updates on the spread and containment of the deadly virus. But in addition to news touching on the numbers, there has also been another point of interest: the measures taken by the Government of Kenya to manage the spread of the virus, and which seem to be heightened every so often.

From a ban on unnecessary travel outside the country to a total travel ban; from a mere suspension of inter-school activities to a total indefinite closure of all learning institutions, etc- these go to show that the management measures only get stricter as we progress, and hence the eagerness of Kenyans for the daily pressers by the Cabinet Secretary (CS) in charge of Health, and occasionally other members of the National Environment Response Committee on Coronavirus (NERCC).

Following the declaration of COVID-19 outbreak as a Public Health Emergency of International Concern by the World Health Organisation (WHO), the NERCC was established vide Executive Order No. 2 of 2020, with the Health CS as its chairperson. The mandate of the Cabinet Secretary in spelling out measures to prevent spread of COVID-19 derives from the Terms of Reference of the NERCC as well as the Public Health Act.

The Executive Order mentioned above was issued by the President on 28th February 2020. The Committee’s Terms of Reference as provided in the Order include:

  • coordination and capacity building of medical personnel to enable effective response to the disease outbreak;
  • surveillance at points of entry into the country;
  • preparation of isolation and treatment facilities;
  • conduct of Economic Impact Assessment and development of mitigation strategies;
  • coordination of stakeholder support and assistance;
  • regulation of entry into Kenya by persons coming from infected areas;
  • conduct of matters ancillary to the terms of reference

The Public Health Act, on the other hand, has been in existence since 1921. It is the law created to deal with the maintenance of public health as well as the eradication of pandemics, endemics and other infectious diseases that have plagued the human population through history. In it are provisions dealing with diseases such as small pox, plague, yellow fever, leprosy, malaria etc. It has however been amended over the years to align it with other relevant, more recent laws such as the Constitution and the Health Act.

Of great importance to the current situation of Covid-19 is Part IV(C) of the Public Health Act. This section contains special provisions for the handling of what it terms ‘formidable epidemics, endemics and infectious diseases.’ Section 36 which is found thereunder bestows on the Health CS wide powers to make and require enforcement of rules for controlling the spread of an infectious disease. The said rules provide for matters such as the speedy interment of the dead; removal of persons who are suffering from an infectious disease and persons who have been in contact with such persons; the manner of dealing with infected items, movement into and out of infected areas, etc. In addition, the Section states that the CS may by an order declare that the rules are enforced in a certain area.

By invoking the powers in the above section, the Health CS proceeded to gazette Rules on 3rd April 2020. These are The Public Health (Prevention, Control and Suppression of Covid-19) Rules, 2020.

PUBLIC HEALTH (PREVENTION, CONTROL AND SUPPRESSION OF COVID-19) RULES, 2020

A glean through the Rules reveals the following provisions:

Notification: according to the Rules, landlords, employers, persons in charge of buildings and other premises have a responsibility to notify a public health officer, a medical practitioner or the nearest administrator of the existence of a suspected Covid-19 case within their premises.

Powers of health officers: Health officers have several powers under the Rules, i.e.

  1. Power to quarantine persons who have been in contact with a confirmed Covid-19 case
  2. Power of search of premises for suspected Covid-19 cases
  3. Power to disinfect premises that have signs of contamination, or that the officer has information of possible contamination with Covid-19.
  4. Power to direct the use of a building suspected to be contaminated, e.g. restricting entry, directing the evacuation of persons e.t.c

Removal and disposal of bodies: Persons who die from infection with Covid-19 are to be treated as provided in the Rules, i.e. burial or cremation must be done between 9:00 am and 3:00 pm; attendees must be fifteen or less, and with prior written consent of the Health Officer; the mode of transport used for procession to the cemetery or crematorium must be disinfected immediately after the procession; the CS may designate an area as a burial site for persons who die of Covid-19

Escaping from quarantine or isolation: this is an offence that attracts a fine of up to twenty thousand Kenya Shillings or imprisonment for two months.

Carriers: The Rules define a carrier as an asymptomatic person, but one who is reasonably believed by the Health Officer to be harboring the infection hence liable to spread it. The Rules provide for the monitoring, examination, isolation and restricted movements of such persons as directed by the Health Officer.

Infected Areas: The Rules give power to the CS to declare regions to be infected areas and give directions on management of the disease therein. At the time of writing this article, the declared infected areas are Nairobi Metropolitan Area, Mombasa, Kwale and Kilifi counties. With this declaration comes the restriction of movement into and out of the infected areas.

General Powers: Finally, the Rules give the Health CS general powers to put in place measures to curb further spread of the virus.

In addition to the above, the CS on 6th April 2020, gazetted further rules in response to the Covid -19 pandemic. These are the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020.

THE PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) RULES, 2020.

The salient features of these Rules are the following:

Declaration of infected areas and restriction of movement into and out of the area: By virtue of three Orders under the Gazette Notice, (i.e. the Nairobi Metropolitan Area Order, Kilifi County Order, Kwale County Order and Mombasa County Order) the infected areas are, the Nairobi Metropolitan Area, Kwale, Mombasa and Kilifi counties. Movement into and out of these areas is restricted to only transportation of food, lawful cargo such as pharmaceuticals, construction materials and fuel, and ambulances transporting patients to hospitals located within the infected areas.

Restriction of transport facilities: transport facilities are directed to carry no more than 50% of their capacity.

Masks: users of public transport are required to wear masks. Each person as well is required to wear a mask when in a public place.

Disposal of bodies of persons who die from Covid-19 infection: burial or cremation should be within 48 hours from the time of death. These Rules also reiterate the ones outlined above, to the effect that attendees of the cremation/burial should not be more than fifteen.

The laws set out above provide the legal basis on which the ministry of Health in conjunction with other stakeholders makes decisions, in a bid to combat the spread of Covid-19.

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