The Human Rights Implications of COVID-19 (Reaction Paper Sample)

The Human Rights Implications of COVID-19: The Limits to the Derogation of Human Rights to Meet the Public Health Emergency Needs
Introduction
In 2019, an infection began as a pneumatic respiratory disease in the Wuhan District of the People’s Republic of China. The infection later turned into a cataclysm of unprecedented levels in the history of the world. The infection was later christened ‘the Coronavirus Disease 2019,’ ‘COVID-19.’[Coronavirus disease 2019 (COVID-19) is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).[6] The disease was first identified in 2019 in Wuhan, the capital of Hubei, China, and has since spread globally, resulting in the 2019–2020 coronavirus pandemic - https://en.wikipedia.org/wiki/Coronavirus_disease_2019 (accessed 10 March 2020).] [WHO, Coronavirus disease 2019 (COVID-19) Situation Report, Data as reported by national authorities by 10AM CET 04 March 2020 at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/laboratory-guidance (accessed 9 April 2020).]
The disease is caused by a virus known as the Coronavirus. COVID-19 is an infectious and highly contagious disease. The virus has spread across almost every part of the globe and has consumed the lives of many people, and thousands of lives continue to be lost every day throughout the globe. The disease has brought the world to a standstill as there is no substantial economic activity going on in almost every part of the world.
The World Health Organisation on the other hand declared the disease, a public health emergency of international concern. As the disease continue to spread and have devastating effects on individuals, states have resorted to taking various drastic but life saving measures, to control the spread of the virus as there still exist no confirmed cure for the disease. For instance, Kenya declared the disease an infectious disease and a state of disaster.[Ibid.] [Ibid.]
Legal Framework
The Constitution of Kenya, 2010
The main feature of the Constitution of Kenya 2010 with regard to health is the Bill of Rights. Article 19 of the Constitution provides that the purpose of reconising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. The Constitution of Kenya 2010 further mandates the State and every person to respect, protect, promote and fulfill the fundamental rights and freedoms as enshrined in the Constitution.[The Constitution of Kenya, 2010, Art 21.]
The Constitution goes on to provide for the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. This being a socio-economic right, Article 21(1) enjoins the State to take legislative, policy and other measures, including the setting of standards, to ensure its realization.[Ibid, Art 43(1) (a).]
The Constitution of Kenya, 2010 only permits the limitation of the rights and fundamental freedoms by law and in a manner that is reasonable and justifiable in an open and democratic society. Furthermore, Article 24(2) of the Constitution of Kenya, 2010 provides that a provision of law shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.[Ibid Art 24(1).]
While limiting a right or fundamental freedom, regard must be had to the nature of the right and fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.[The Constitution of Kenya, 2010 Art 24(1).]
Despite Article 24 of the Constitution, Art 25 provides for the fundamental rights and freedoms which may not be limited. The Constitution provides inter alia that freedom from torture and cruel, inhuman or degrading treatment or punishment; and the right to a fair trial. Moreover, Article 28 inextricably imbues the right to human dignity at the center of humanity.
However, the Constitution allows the President to declare a State of emergency when the State is threatened by inter alia natural disaster or other public emergency. Article 58(6) of the Constitution of Kenya 2010 provides that any legislation enacted in consequence of a declaration of a state of emergency may limit a right or fundamental freedom to the extent that the limitation is strictly required by the emergency; and the legislation is consistent with the Republic's obligations under international law applicable to a state of emergency. A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.[Ibid, Art 58(1) (a) and Art 132(4) (d).] [Ibid, Art 58(7).]
Health Act No. 21 of 2017
The Health Act 2017 was enacted to among other things protect, respect, promote and fulfill the health rights of all persons in Kenya to the progressive realization of their right to the highest attainable standard of health, including reproductive health care and the right to emergency medical treatment.[Health Act, 2017, s 3(b).]
The Act provides at section 4 that it is a fundamental duty of the State to observe, respect, protect, promote and fulfill the right to the highest attainable standard of health including emergency medical treatment. The State is required to actuate this by developing policies, laws and other measures necessary to protect, promote, improve and maintain the health and well-being of every person. The State is also required under section 4(b) of the Health Act 2017 to prioritize and adequately invest in research for health to promote technology and innovation in health care delivery.[Ibid, s 4(a).]
The Act significantly furthers the spirit of the Kenya’s Bill of Rights by providing that every person has the right to highest attainable standard of health which shall include progressive access for provision of promotive, preventive, curative, palliative and rehabilitative services. Section 5(2) of the Act further provides that every person has the right to be treated with dignity, respect and have their privacy respected in accordance with the Constitution and the Health Act 2017.[Ibid, s 5(1).]
Emergency Treatment
The Health Act, 2017 provides at section 7(1) that every person has the right to emergency medical treatment. Emergency treatment is defined at section 2 of the Health Act 2017 as the necessary immediate health care that must be administered to prevent death or worsening of a medical situation. The Act provides that emergency medical treatment include pre- hospital care; stabilizing the health status of the individual; or arranging for referral in cases where the health provider of first call does not have facilities or capability to stabilize the health status of the victim.[Health Act, 2017, s 7(2).]
Privacy
The Act generally provides that no specified health service may be provided to a patient without the patient's informed consent. However, section 9 of the Health Act, 2017 provides that health services may be administered without consent where inter alia the provision of a health service without informed consent is authorized by an applicable law or court order; the patient is being treated in an emergency situation; failure to treat the user, or a group of people which includes the user, will result in a serious risk to public health; or any delay in the provision of the health service to the patient might result in his or her death or irreversible damage to his or her health and the patient has not expressly, or by implication or by conduct refused that service.[Ibid, s 9(1).]
Moreover, with regard to disclosure of information relating to one’s health status, treatment or stay in a health facility, section 11(1) of the Health Act 2017 provides that such information is confidential except where such information is disclosed under order of court or informed consent for health research and policy planning purposes. The Act further provides that such information may not be disclosed unless the user consents to such disclosure in writing in the prescribed form; a court order or any applicable law requires such disclosure; or non-disclosure of the information represents a serious threat to public health.[Ibid, s 11(2).]
Public Order Act Cap 56
The Act permits the Cabinet Secretary for Interior and Coordination, on the advice of the Inspector-General of the National Police Service to make curfew orders, if he considers it necessary in the interests of public within such area and during such hours as may be specified in the curfew order. The persons affected by a curfew order shall be required to remain indoors during curfew.[Public Order Act Cap 56, s 8(1).]
A curfew order shall be published in such manner sufficient to bring it to the notice of persons affected thereby. Section 8(5) of the Public Order Act further stipulates that the variation or rescission of a curfew order must be published. Additionally, section 8(6) of the Act provides that any person who contravenes any of the provisions of a curfew order shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both.[...