REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
PETITION NO. 3 OF 2010
IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER
SECTION ARTICLE 22(1) OF THE CONSTITUTION OF THE REPUBLIC OF
KENYA
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTION
ARTICLES 28, 29, 51(1), 47(1), 39(1) AND 24(1) OF THE CONSTITUTION OF THE
REPUBLIC OF KENYA
AND
IN THE MATTER OF THE PUBLIC HEALTH ACT, CHAPTER 242 OF THE
LAWS OF KENYA
BETWEEN
DANIEL NG’ETICH========================================1ST PETITIONER
PATRICK KIPNG’ETICH KIRUI ============================2ND PETITIONER
KENYA LEGAL & ETHICAL ISSUES
NETWORK ON HIV & AIDS (KELIN)========================3rd PETITIONER
AND
THE HON. THE ATTORNEY GENERAL====================1ST RESPONDENT
THE PRINCIPAL MAGISTRATE’S
COURT AT KAPSABET===================================2ND RESPONDENT
PUBLIC HEALTH OFFICER NANDI CENTRAL DISTRICT
TUBERCULOSIS DEFAULTER TRACING
COORDINATOR=========================================3RD RESPONDENT
THE MINISTER FOR PUBLIC HEALTH
& SANITATION =========================================4th RESPONDENT
AFFIDAVIT IN SUPPORT OF PETITION
I, ALLAN ACHESA MALECHE, of P.O.BOX 112 – 00202 Nairobi within the
Republic of Kenya do hereby make a solemn oath and swear as follows:1. THAT, I am an advocate of the High Court of Kenya and the Executive
Director of Kenya Legal and Ethical Issues Network of HIV & AIDS (KELIN)
who has the conduct of this matter on behalf of the petitioners thus competent
to swear this affidavit.
2. THAT, I have the authority of the Board of Directors to swear this affidavit on
behalf of the 3rd Petitioner herein to swear this affidavit.
3. THAT, I have read and understood the contents of the Petition herein and I
have also interacted with the 1st and 2nd Petitioner herein and I fully
understand the issues in question.
4. THAT, KELIN is a non – partisan , non- profit making organization and nongovernmental organization duly registered under the Non- Governmental
Organizations
Act
and committed to the protection , promotion and
enhancement of enjoyment of the right to health through public interest
litigation , advocacy and law reform.
5. THAT, the mandate of KELIN is to protect and promote HIV related human
rights in East Africa by providing legal services and support , training
professionals on human rights , engaging in advocacy campaigns that
promote awareness of human rights issues , conducting research and
influencing policy that promotes evidence based change.
6. THAT KELIN’s mission is to promote and protect HIV related human rights
for all while its mission is to promote and protect HIV related rights by all I
annex and mark as ‘AAM- 001’ a copy of KELIN’S Constitution.
7. THAT, I know as of my own knowledge and based on the reading of the
contents of the petition and perusal of the court file and interactions with the
1st and 2nd petitioner that the 1st and 2nd petitioners herein were arrested ,
arraigned in court and convicted to imprisonment in isolation for purposes of
Tuberculosis treatment. They were in prison for 46 days before an order for
their release was issued by this Honourable Court.
8. THAT, I have been informed by the 1st and 2nd Petitioners that no precaution
was taken to avoid the spread of the disease as was alleged to be done by the
3rd Respondent as they were held together with other inmates at the Police
Station and the prison too. While at the court room, they were not isolated but
shared the court room with the general public.
9. THAT, this action was carried by the 3rd Respondent with a view of
preventing the spread of an infectious disease to the members of the public in
accordance to Section 27 of the Public Health Act, Chapter 242, Laws of
Kenya.
10. THAT, I am informed by the 1st and 2nd Petitioners which inform I verily
believe to be true, that they were held together with other persons both in
remand and in prison.
11. THAT, even though the whole purpose of arrest and subsequent conviction
and detention was to prevent them from spreading the disease to third
parties, the actions of the 2nd and 3rd Respondents did not reflect that.
12. THAT, the limitation of the 1st and 2nd Petitioners freedom of movement and
personal liberty for purposes of preventing the spread of an infectious disease
to members of the public, was far too excessive and punitive and violates the
constitutional threshold of reasonableness as spelt out in Article 39 (1) and 29
of the Constitution of Kenya (2010) respectively.
13. THAT, reasonableness and the use of justifiable measures are required even
where there is a good cause for the limitation of a Constitutional right, but
this is not the standard according to which the 1st and 2nd Petitioners were
dealt with.
14. THAT, the 1st and 2nd petitioners were held in a
prison cell with other
prisoners without due regard to the fact that they were to be isolated as was
ordered by the 2nd Respondent upon conviction; they were not given proper
diet and not provided with blankets at the prison.
15. THAT, the Constitution at Article 43 clearly provides that every individual
has the right to the highest standard of health including the right to health
care services which services were not provided to the 1st and 2nd Petitioners
when they were convicted and sent to prison as they were given medicine
and not provided with a proper diet to go with the drugs.
16. THAT,
Article 27 of the Constitution provides that every person is equal
before the law and has the right to equal protection and equal benefit of the
law and that one should not be discriminated upon on the basis of their health
status but it is clear from the manner in which the 1st and 2nd Petitioners were
treated, the foregoing provision was violated.
17. THAT, while Article 28 upholds the dignity of an individual which dignity
should be respected and protected the 1st and 2nd Petitioners were subjected
to acts which were humiliating and degrading to them.
18. THAT, the Constitution at Article 29 provides for the freedom and security of
an individual and further that one should not be subjected to torturous acts
whether physical or psychological, the 1st and 2nd petitioners were subjected to
acts which not only were inhuman but were also torturous psychologically.
19. THAT, the 1st and 2nd Petitioners were deprived of their fundamental rights to
be free from torture , cruel , inhuman or degrading treatment contrary to the
provisions of Article 25 of the Constitution of Kenya (2010) , yet the
Constitution guarantees the foregoing freedoms absolutely and without any
limitations at all and even when their rights and fundamental freedoms were
violated, the provisions of Article 24 were not taken into account which
provides that it is only by law that a right or fundamental freedom can be
limited..
20. THAT, the Constitution of Kenya (2010) at Article 2 (5) & (6) provides for the
use of International law and in particular those which have been ratified by
Kenya and therefore makes them part of Kenyan law.
21. THAT, the Kenyan government ratified the United Nations Convention
against Torture and other cruel inhuman and degrading treatment or
punishment on 21st February, 1997 which convention defines torture to mean
any act by which severe pain or suffering , whether physical or mental is
inflicted on a person.
22. THAT, the provisions of Article 2 of the Convention against Torture provide
that a superior officer or public authority may be invoked as a justification of
torture. The way in which the 2nd and 3rd Respondents handled the 1st and 2nd
Petitioners was against the same.
23. THAT, Kenya ratified the International Covenant on Economic , Social and
Cultural Rights on 1st May, 1972 and Article 12 of it provides that state parties
shall recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health and also create conditions
which would assure to all medical service and medical attention in the vent of
sickness.
24. THAT, Kenya also ratified the International Covenant on Civil and Political
Rights on 1st May, 1972 and at Article 9 it provides that everyone has the right
to liberty and security of the person and at Article 10 that all persons deprived
of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person but it is clear that the 1 st and 2nd
Petitioners’ were not treated with such kind of dignity.
25. THAT, the United Nations Economic and Social Council , UN Sub –
Commission on Prevention of Minorities , Siracusa Principles on the
Limitation and Derogation of provisions I the International Covenant on Civil
and Political Rights at Article 25 provides that public health may be invoked
as a ground for limiting certain rights in order to allow a state to take
measures dealing with a serious threat to the health of the population or
individual members of the population and in that instance due regards shall
be given to the International Health regulations of the World Health
Organization.
26. THAT, the manner in which the 1st and 2nd Petitioners were handled by the 2nd
and 3rd Respondents goes against the Government of Kenya’s commitment
made in Abuja during the African Summit on HIV/ AIDS, Tuberculosis and
other related infectious diseases in April 2001 to provide care and support
and quality treatment to the Kenyan population infected with HIV/ AIDS , TB
and other related infections.
27. THAT, further, this Honourable Court is bound by Article 20 of the
Constitution of Kenya (2010) where the Court has the power to promote the
values that underlie an open and democratic society based on human dignity,
equality, equity and freedom while at the same time seeing to it that the state
fulfils its international obligations in respect of Human Rights and
fundamental freedoms.
28. THAT, the acts of the 2nd and 3rd Respondents while handling the 1st and 2nd
Petitioners , were contrary to the provisions of Article 10 of the Constitution
where they were expected to uphold human dignity , equity , social justice ,
inclusiveness, equality , human rights , non-discrimination and protection of
the marginalized while making or implementing public policy decisions.
29. THAT, pursuant to Section 27 of the Public Health Act, Chapter 242 of the
Laws of Kenya, prison facilities are not envisaged as the place of isolation for
purposes of tuberculosis treatment as prisons do not have places of isolation
and neither do they have health facilities.
30. THAT, the convictions of TB patients to prison poses a threat to the rest of
prison population as they are at risk of being infected since the cells are not
properly ventilated and the prisons are overcrowded thus violating their right
to health
31. THAT, I understand that such an action may be well intended to protect the
entire society from the spread of the disease but prison which is known for its
uncleanliness cannot be the best alternative institution to hold them, when
they are already sick.
32. THAT , Section 27 of the Public Health Act, Chapter 243 Laws of Kenya
broadly describes the conditions , under which an individual can be detained
, but there is, however little guidance on the procedures to be adopted , and in
particular there are no safeguards to access legal representation or request
judicial review as is required by international law.
33. THAT, the correct procedure was not utilized to enforce the provisions of
Section 27 of the Public Health Act , whereas the section provides for a
certificate signed by the medical officer for health none was presented to
court , and in any event , the affidavit presented in Kapsabet Misc. Criminal
Case No. 46 of 2010 had no supporting documents to verify the allegations
made by the 3rd Respondent.
34. THAT, there is no evidence to show that the 1st and 2nd Petitioner were tested
to ascertain which state of the disease they had and whether at that point they
were infectious or not.
35. THAT, the manner in which the 1st and 2nd petitioners were treated actually
indicates that the whole process and the action taken was not in the public
interest as the 1st and 2nd Petitioners were held in remand with other members
of the Public at the Police Cells and together with other prisoners at the
Kapsabet GK Prison contrary to the purpose of Section 27 in disregard of the
2nd and 3rd fears that they were infectious and a danger to other members of
the public.
36. THAT, it was important to ascertain what category of Tuberculosis the
Petitioners had and the level of threat , if any, they posed to the public in
order to justify the compulsory measures and the public health threat that the
2nd and 3rd Respondent asserted as the basis for restrictive measures should
have been demonstrable.
37. THAT, the detention of the Petitioners was not proportionate to the offence
they had allegedly committed for three reasons:
a) firstly, it did not strike a fair balance between public health
concerns and individual rights ,
b) secondly, it was not the least restrictive measure that could have
been employed as a hospital or other facility would have been fair
and
c) Thirdly, the confinement was not voluntary and therefore
interfered unfairly with the 1st and 2nd Petitioners’ autonomy and
dignity. In the circumstances, prison was clearly not an adequate
setting to control the disease.
38. THAT, the 3rd Petitioner is not challenging the importance of Section 27 of the
Public Health Act, Chapter 242, Laws of Kenya, the 3rd Petitioner avers that
the place of detention for purposes of protecting the members of the public
from infection, should be health facilities / settings rather than prisons mainly
because the Kenyan prisons do not have isolation cells, the available cells are
shared by more than ten (10) inmates and are not properly ventilated.
39. THAT, the Prisons Act, Chapter 90 Laws of Kenya does not provide for
facilities of isolation of prisoners or any other persons while at the same time
the act only provides for prisoners who have been convicted for committing
criminal acts and not those persons seeking medical attention or treatment.
40. THAT, the measures employed by the 2nd and 3rd Respondents go contrary to
the Internationally recommended Tuberculosis Patients’ Charter which spells
out the rights and responsibilities of TB patients.
41. THAT, KELIN in fulfilling its mandate has tried to reverse the doings of the
2nd and 3rd Respondents by training members of the community on
community engagement in the control, management and care of TB patients
incorporating a rights based approach in Kapsabet , Nandi County on 20 th –
22nd March, 2011. Annexed in the List of Documents filed in this Honourable
Court is a copy of the workshop report.
42. THAT, later on the 23rd March , 2011 KELIN held a community dialogue
forum on Human Rights and the effective control , management and care of
TB and HIV in Kapsabet , Nandi County to educate members of the
community on how to handle themselves in the event they are infected with
TB and also how to handle TB patients.
43. THAT, I swear this Affidavit in support of the Petitioners’ petition before this
Honourable Court.