Respect human rights when combating coronavirus
Wednesday, March 25th, 2020
In the wake of the coronavirus pandemic, governments across the world have adopted far-reaching measures. But some of the responses have raised concerns about human rights violations.
Globally, the measures have ranged from prohibition of public gatherings, closure of bars and restaurants to lockdown of entire cities.
In Kenya, the government has ordered closure of learning institutions, made it mandatory to self-quarantine for all who have entered the country in the recent past, limited movement of prisoners and stopped prison visits while the Judiciary has scaled down operations, among other measures.
There have also been arrests on allegations of spreading fake news on the coronavirus while a clinic was shut down for purporting to sell test kits for Covid-19.
The Health Cabinet Secretary has threatened the jailing of those who refuse to self-quarantine when required to.
While there is no doubt about the public interest that the government seeks to safeguard, namely public health, it is also the opportune time to increase vigilance against possible government excesses and human rights violations in the current crisis.
Kenya is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and, therefore, legally bound by state obligations therein.
Under the ICCPR, the following rights can be limited on grounds of public health: the right to liberty of movement, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right of peaceful assembly and the right to freedom of association with others.
There is now consensus, internationally, that such limitations are to be guided by certain principles some of which are captured under Article 24 of our Constitution.
The Constitution stipulates that the limitation must be based on human dignity, equality and freedom.
International and domestic human rights courts, including ours, concur that there are four questions that must all be answered in the affirmative if a measure limiting a human right is to be considered lawful.
Is there a legal basis for the measure limiting the right? Does the limitation pursue a legitimate aim such as respect of the rights or reputations of others, the protection of national security, public order or public health?
Is the limitation necessary to achieve the legitimate aim, and is the extent of the limitation proportionate in pursuit of the identified aim?
Finally, does the restriction respect the principle of equality and non-discrimination?
In view of the above, during this crisis, every time the President, Health CS or other official announce measures that seek to limit rights and freedoms, Kenyans must demand to know the legal basis for the same.
When the government warns against the spread of fake news on the coronavirus crisis, Kenyans must be vigilant to ensure the government is not unnecessarily restricting free flow of information on the situation, particularly through social media.
Should an expansive lockdown become necessary, we must demand that in such severe restriction on movement, slum dwellers, persons with disability, the elderly, the unemployed who live from hand to mouth and other vulnerable groups are not affected in a disproportionate manner.
Measures taken, and which would lawfully permit derogation from human rights, must be those that are strictly required by the exigencies of this crisis.
This will keep in check overzealous public officers who may be tempted to capitalise on the crisis to normalise authoritarianism.
In sum, as the government responds to the coronavirus pandemic, respect for human rights should not be an afterthought —The writer is an Advocate of the High Court of Kenya