NEWSLETTER ON THE PUBLICATION OF THE PUBLIC HEALTH (PREVENTION, CONTROL AND SUPPRESSION OF COVID-19) RULES, 2020 AND DECLARATION OF INFECTED AREAS IN KENYA

Whenever any part of the country appears to be threatened by any formidable epidemic, endemic or infectious disease, the Cabinet Secretary for Health is empowered by the Public Health Act to make rules for prevention, control or suppression of such infectious disease. Pursuant to this authority, the Cabinet Secretary on 3 April 2020 published the Public Health (Prevention, Control and Suppression of COVID-19) Rules, 2020 (the Rules).

Ensuing from the publication of the Rules, on 6 April 2020 the President read the Cabinet Secretary’s declaration of Nairobi Metropolitan area and the counties of Kilifi, Kwale and Mombasa as COVID-19 infected areas. The President further directed a cessation of all movement in and out of these areas for an initial containment period of 21 days with effect from 1900 hours on Monday, 6 April 2020.

While movement within these four counties is to continue, subject to the ongoing nationwide curfew (from 1900 hours to 0500 hours), the Rules put into sharp focus the powers of the Cabinet Secretary in these uncertain times.  We have highlighted below some salient points on the Rules:

Reporting obligations

The Rules, a priori, place an obligation on every owner, occupier of premises and head of a household who suspects that any person who is residing at his or her premises is suffering from COVID-19 to notify a medical officer, public health officer or medical practitioner or take that person to a health facility for treatment.

A similar obligation has been placed on employers in respect of any person who is in their employment.

As soon as a medical officer, public health officer or medical practitioner is notified of the above suspicion and upon examination of such person becomes aware or suspects that they are suffering from COVID-19, they are to transfer the patient to the nearest health facility.

After the transfer of the patient the medical officer, public health officer or medical practitioner shall immediately visit and inspect the premises where that patient resides and may either order all persons who have attended to or been in contact with the person to remain on the premises; or cause those persons to be removed to a health facility or other suitable place provided for the reception of persons suffering from COVID-19 or for quarantine.

Where a person is confined in a place designated for isolation or for quarantine for COVID-19 and escapes from that place, a medical officer shall immediately notify the police and request the police to apprehend and return the person to the designated place.

Declaration of infected areas and designation of facilities

As indicated above, the Cabinet Secretary may declare any place to be an infected area and regulate the activities and conduct that may be carried out within the infected area. Such declaration shall be by notice in the Gazette and in a newspaper with a wide circulation.

Any person residing in a declared infected area may be directed to undergo such mandatory medical inspection or examination as the Cabinet Secretary or medical officer health may direct.

Depending on the circumstances in an area, the Cabinet Secretary may designate a private health facility, an educational institution, hotel or any other establishment as he may deem appropriate as a designated facility for purposes of handling and treatment of COVID-19 patients whether the area is designated as an infected area or not.

Power to search and direct the use of a building

A public health officer, health inspector or other person acting on the written instructions of a medical officer of health, may enter any premises in order to search for any case of COVID-19 or to inquire whether there is or has been any case of COVID-19 on the premises. Upon discovery of any case of COVID-19, he or she shall report the discovery to a medical officer.

Where a medical officer of health has information of contamination of a building, or premises they shall decontaminate it or cause its decontamination. A medical officer of health or public health officer may direct evacuation of such building or premises, or prohibit entry for such duration as may be necessary to decontaminate it.

Carriers of the disease

A carrier of COVID-19 is defined as anyone who may present the clinical symptoms of COVID-19 but has been proved or is believed on reasonable grounds, to be harboring the infection and consequently capable of causing the spread of the virus.

All such asymptomatic carriers of the disease are required to allow, on written request by the medical officer of health for the obtaining from him or her specimens of blood, excreta, discharges or other material required for examination and investigation.

Where any carrier intends to change his or her place of residence or work he/she must inform the medical officer of his or her intended new place of residence or work within 7 days before the change.

Effects of the Rules

The Rules have criminalization provisions, and persons who contravenes the provisions of these Rules shall be liable to a fine not exceeding KES 20,000, or to imprisonment for a term not exceeding 6 months.

A number of questions are likely to arise such as the definition of who is “the head of the household” which is a term undefined by the Rules in light of the reporting obligations placed on such a person under the Rules.

Arguably, employers now have an obligation to monitor the safety and health of their staff in light of the obligation to make necessary reports to designated officials if they suspect that any of their employees suffer from COVID-19.

Further, the power of the Cabinet Secretary to mandatorily require that asymptomatic carriers of the virus provide specimens for examination and investigation without the carrier’s consent raises the possible legal question of infringement of constitutional rights and freedoms including the right to property, right to freedom and security of the person, right to protection of one’s human dignity and right to privacy.

Similar concerns relate to the power of the Cabinet Secretary to direct that any person residing in a declared infected area undergo mandatory medical inspection or examination.

Whether or not the constitutionality of the Rules will be challenged remains a matter to be seen in coming days. Some judicial insight from the case of Republic v Ministry of Health & 3 others Ex-parte Kennedy Amdany Langat & 27 others [2018] eKLR reveals that courts have accepted that the Cabinet Secretary has wide ranging powers under the Public Health Act to undertake measures to ensure maintenance of public health in the Republic. This decision seems to suggest that courts may give the Rules a clean bill of health even if they were to be subjected through the rigors of judicial scrutiny based on alleged constitutional violations.

Lastly, it is likely to be counterproductive if the medical officer in exercise of his/her powers requires persons who have been in contact with an infected person to remain on the same premises where the person was at the time of infection. Such a directive may result in such persons contracting the disease.

However, Covid-19 is an extraordinary virus hitherto unknown to mankind and machine. It will require extraordinary means and ways to combat it within the Public Health Act. In the meantime the safest thing for all of us to do is:

• Wearing a mask when outside the home.
• Cleaning your hands with soap for at least 20 seconds several times a day.
• Avoiding all areas with people who will be closer to you than 1.5 metres.
• Heeding albeit to and complying with government directives.
• Taking extra care not to expose those who are over 58 years and have chronic ailments.