Many Kenyans had been eagerly awaiting a High Court judgment in a case testing the constitutionality of the government’s Covid-19 mandatory quarantine regime.
They felt it was unfair to require that people flying into Kenya had to stay in mandatory quarantine facilities for two weeks – and pay for that stay themselves. In addition, they complained that the poor conditions in those facilities further violated their rights.
Now, writes Carmel Rickard in her A Matter of Justice column on the Legalbrief site, judgment has been delivered – and it’s likely to disappoint many because it exonerates the government on most of the complaints made by the petitioners.
The case was originally filed in May 2020, when the question of how to deal with Covid was still being debated.
The first applicant had been living and working in Malawi before the pandemic. She left Malawi on 23 March with her nine-year-old daughter to return to Kenya, but as they arrived, they were told by the plane crew that they were subject to mandatory quarantine.
Seven hours later they were driven to the Crowne Plaza Hotel, but when they insisted they couldn’t afford to pay for a fortnight’s quarantine there, they were taken back to the terminal where they slept on the floor and were given no food.
Eventually they ended up at the Hillpark Hotel and had to borrow money from friends to pay their bill for the fortnight spent there.
The other petitioners had similar stories of their experiences of the mandatory quarantine requirement, giving alarming details of what had happened during that period.
Among other complaints, they said there was no provision for children in the quarantine facilities and that the government’s quarantine orders were “arbitrary and unreasonable” and contrary to WHO’s guidelines.
A psychologist said she had interviewed the applicants and some of them had developed severe depression, anxiety and other difficulties because of the mandatory quarantine experiences.
But the government said it had a right to limit rights and freedoms in the public interest, that the petitioners “failed to recognise the … sensitivity of [the pandemic and the risk posed to the public if the Covid protocols were not complied with”.
In her judgment on the opposing views, the judge said she couldn’t deal with some of the issues raised – that there weren’t measures in place at these facilities to protect women and that in some of them, women were forced to share bathrooms and even rooms with men.
She said this was an issue not pleaded by the original petitioners, but on the issues before her, and of complaints of violation of constitutional rights,
the objective behind the government’s rules and regulations amounted to a policy decision, something within the government’s constitutional mandate.
In her view, “the implementation of the mandatory quarantine was justified and … there existed legal protocols and guidelines on the manner of implementation”.
The government’s act in “forcefully detaining” one of the petitioners for not paying the bill for mandatory quarantine did not violate constitutional rights, and it was “incumbent” on a person staying at a quarantine facility to “pay the facility’s fees before being discharged”.
However, the state was supposed to treat the test results confidentially, but it failed to do so – infringing the Health Act and the Constitution. Similarly, because there was no provision for children in the quarantine facilities, the state failed in its obligation to uphold children’s constitutional rights.
The arrest and detention in quarantine facilities of those who broke the curfew order violated their constitutional rights, and in the end, the judge granted two declarations. One was that the government acted beyond its powers in ordering the mandatory quarantining of those who contravened curfew orders.
The other declared that the government’s guidelines had failed to provide guidelines for how children in quarantine facilities were to be “‘treated, handled and managed”, and thus violated the rights of the children involved.
She further ordered that guidelines on the care of children in quarantine facilities had to be developed and published, and awarded Kshs 200 000 (around R26 000) as general damages to the child among the petitioners who had been held in mandatory quarantine.
Kenya judgment
Kenya judgment
LegalBrief article – Court sides with state in Covid-19 rights challenge (Restricted access)
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