Daniel Ng’etich & 2 Others v. Attorney General & 3 Others, Petition No. 329 of 2014  eKLR
In 2010, Daniel Ng’etich and Patrick Kipng’etich Kirui were arrested by the Public Health Officer, Nandi Central District Tuberculosis Defaulter Tracing Coordinator, who applied to a Magistrate for their imprisonment, alleging that they had failed to take prescribed TB medication. Pursuant to Section 27 of the Public Health Act, the Magistrate ordered that the men be confined for eight months or a satisfactory period for treatment. They remained in prison for 46 days.
The two men challenged their confinement as a violation of their constitutional rights both under the 1969 and 2010 Kenyan Constitutions. Although they recognized that Section 25 of the United Nations Economic and Social Council Siracusa Principles permit the invocation of public health as grounds for limiting rights where there is a serious threat to the population, they argued that the measures taken in their case failed to meet the Siracusa requirements because they were not specifically aimed at disease prevention or care but, rather, were aimed at punishment. The Government argued that, pursuant to Article 24(1)(d) of the 2010 Constitution, the petitioners’ rights and fundamental freedoms were lawfully limited in order to ensure that their enjoyment of rights or freedoms did not prejudice other members of society’s enjoyment of the right to health. The Government also averred that imprisonment was a last resort because the petitioners had failed to adhere to treatment at the hospital and at home.
Drawing on domestic cases, the World Health Organization Guidance on ethics of tuberculosis prevention, care and control 2010, and the 1969 and 2010 Constitution, the Court found that under certain circumstances, confinement of TB patients is a justified limitation of their rights and complies with the Siracusa Principles. However, their confinement in penal institutions “was not in accordance with the Public Health Act, or international guidelines and principles regarding isolation of patients with TB.” (para. 68). It violated the petitioners’ and other similarly-situated patients’ rights to liberty (Article 29) and freedom of movement (Article 39; Article 81 of 1969 Constitution) as well as their rights to freedom of association and assembly (Article 80 of 1969 Constitution). The Court further found that such confinement could not meet its intended purposes given the conditions in Kenyan prisons (i.e. overcrowding and lack of both basic and isolation facilities).
Although the Court declined to award damages because of the importance of cultivating personal responsibility, it declared that the petitioners’ confinement in prison was not authorized under Section 27 of the Public Health Act and ordered the Minister for Public Health and Sanitation to issue a circular, within 30 days, to medical facilities and public health officers clarifying this. The Court also directed the Minister to develop, within 90 days and in consultation with county governments, a policy on confinement of people with TB and other infectious diseases and to file an affidavit with the Court detailing the measures put in place.
On 12 May 2016, the Principal Secretary for Health issued a circular to all health officials informing them that confinement of patients with infectious diseases for purposes of treatment should be done in health facilities and not in prison. KELIN expects to follow up immediately if the Minister does not file an affidavit after 90 days detailing the steps they have taken to comply with the initial court order, to ensure the accountability of the government. KELIN plans to mobilize TB communities and other stakeholders, including funders who support TB work in Kenya, to put pressure on the national government to develop the policy. The organization will also intensify efforts on its campaign “TB Is Not A Crime! Promote adherence.” If all other measures fail, KELIN will file contempt of court proceedings.
Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK), AIDS Law Project
It also recognizes that imprisonment for defaulting on treatment often disproportionately affects indigent people who depend on the public health system. Finally, the Court’s orders jumpstart a process of developing government policy that protects constitutional rights and adopts international norms in the TB treatment process. In particular, the decision reiterates the Government’s duty to take measures toward the progressive realization of the right to health by complying with human rights obligations engaged by particular situations, and following current ethical guidelines that promote the voluntary, constructive treatment of TB through the following steps among others: the provision of free TB Care; ensuring that patients are fully informed and counselled about their treatment; and ensuring that health care providers support patients to complete therapy. Involuntary isolation on public health grounds should only be used as a last resort after other measures have failed, and should not include forced treatment if the patient refuses it.