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Human Rights Implications of the Covid-19 Pandemic in Kenya

Paper by Prof Patricia Kameri Mbote and Dan Allan Kipkoech

I.        Introduction

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.

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