Professor of Law, School of Law, University of Nairobi
Dan Allan Kipkoech
University of Nairobi
COVID-19 was first identified in Wuhan, China in December 2019 and by March 11, 2020, the World Health Organization declared it a pandemic. WHO called on governments to act immediately to combat the spread of the virus citing concerns on the alarming levels of severity and spread. COVID-19 is an infectious disease caused by the novel coronavirus also known as the Severe Acute Respiratory Syndrome (SARS-COV-2). The COVID pandemic has put immense pressure on public health. The threat to human life justifies temporary restrictions on specific rights such as the freedom of movement. Isolation and quarantine limit this freedom. Concerns have also been raised about neglect of human rights principles and the risk of discrimination. This has arisen for instance, with respect to human dignity and transparency with respect to police functions and health practitioners execution of their functions during this period.
International human rights range from civil and political rights (CPR) to economic and social rights (ESR). At the heart of COVID-19 is the right to health. The Kenyan Constitution provides for the right to the highest attainable standard of health. It obliges the government to enhance the public health sector and manage public emergencies especially when it is threatening the life of its citizens. At this point, restrictions on the enjoyment of some rights are justified. However, the limitations should have a legal basis and they should only be imposed when necessary. Scientific evidence should be the basis on which judgments on the human rights interventions are to be taken. Arbitrary or discriminatory orders should not be taken in the absence of evidence. Even where based on evidence, orders should be regularly reviewed, proportionate and applied only for a limited duration to achieve their objectives.
Undoubtedly, the coronavirus pandemic will cause global economic and social shocks of untold severity and scale. At the time of writing this article, there were over 49,000 confirmed cases in Africa. As of 5th May 2020, Kenya had reported 535 cases with 182 recoveries and 24 deaths. It is fair to say that Kenya and other African countries are taking steps to reduce the chances of transmission or to ‘flatten the curve’. These include measures such as restricting air travel, closing schools, imposing curfews, outlawing large gatherings and putting in place conditions that enhance social distance and hygiene particularly in the public transport sector. However, the steps taken may not be enough should Africa experience the same health crisis as the one experienced in Italy, China or USA. There is clearly a need for innovativeness to combat the pandemic.
The calls for social distancing, washing of hands, isolation and quarantine have demonstrated the importance of ESR in any country. The right to adequate standards of living, health, water, basic nutrition and other ESR are paramount in any society.
The “progressive realization” jurisprudence on these rights has allowed the Kenyan government to delay Kenyans’ enjoyment of ESR. This paper questions the government’s view that the failure to enjoy ESR is largely due to the state’s inability. It argues that the constraints can be surmounted by prudent use of the country’s capacity, logistics and resources.
We argue that these rights should not only be laid out in law and policy but that a minimum standard should be established to ensure that everyone accesses them. The paper looks at the human rights’ concerns and governmental duties in the light of COVID-19. It analyzes the responses of the Kenyan government in combating the pandemic and draws positive examples from other governments that have performed better in their duties with respect to human rights. Part I is the introduction. Part II lays out the human rights focusing on both civil and political rights and economic and social rights. Part III discusses the rights of specific groups within the context of COVID-19 while Part IV concludes and makes recommendations.