In the wake of the global pandemic Corona virus (Covid -19), many countries have put in place measures such as lock-downs, curfews and rules on social distancing, hygiene e.t.c. to stop the spread of the virus (flattening the curve).
Kenya has for instance enacted rules;- Legal Notices 36, 49, 50, 51, 52, 53 and 54 among others to combat the spread of the virus.
In the last few days, we have seen Kenya Police officers arresting Kenyans found in public places without face masks and sending them forcefully to isolation center for a mandatory 14 day quarantine. Is it legal? Is it lawful?
- Under the THE PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) RULES, 2020
Rule 6 (1) (b) states that “Every person who is in a public place during the restriction shall use a proper face mask that must cover the person’s mouth and nose.”
Rule 11 provides a penalty of a fine not exceeding twenty thousand shillings or an imprisonment for a period not exceeding six months or both if convicted under any of the rules.
Going by the above provision, taking people to forced quarantine is unlawful. Not wearing a mask is an offence under a particular law attracting a specific penalty not a gateway to isolation or quarantine.
However, let us examine other legal provisions thereto.
- Rule 9 of Prevention, Control And Suppression Of Covid-19 Rules, 2020 under the Public Health Act (Cap. 242) provides that:-
“Any health facility that receives a person suffering or suspected of suffering from COVID-19, shall receive and deal with that person in accordance with the directions of the medical officer of health or public health officer.
- Under Rule 11 (2) states that ‘Any person who is believed or suspected, on reasonable grounds, by a medical officer of health to be a carrier shall allow, on request by the medical officer of health, or by any person authorized by the medical officer of health in writing, the medical officer of health to obtain from him or her specimens of blood, excreta, discharges or other material required for examination and investigation.
- Rule 4 (b) provides that ‘a medical officer/public health officer can cause persons who may have been in contact with a person having the COVID -19 virus to be removed to a health facility for quarantine.
- Under Rule 10 (1), a medical officer can request the police to apprehend and return an escapee back isolation or for quarantine for COVID -19.
Medical Officers and/or Public Health Officers are the persons who have the capacity to recommend or otherwise take someone to quarantine once:-
- They test a suspected person and find that they are infected with the corona virus; or
- When they suspect someone of having been in contact with a suspected person.
Therefore, anyone not wearing a face mask is NOT a suspected or infected person.
It is ironic that some of the police officers who are carrying out these arrests don’t have face masks! Follow up question, if the police are arresting persons without masks on the suspicion that they are carriers of the virus then should the police then go to isolation/forced quarantine by virtue of interacting with them?
CONCLUSION
The Kenya Police and officers on patrol should exercise diligence in arresting persons who contravene laws (COVID-19 and others). First, they need to have proper protective equipment. Second, bundling up people on sight and taking them to an isolation center is unlawful. Public Health officers or their equivalents have modalities to do that as seen above. There must be reasonable ground for quarantine and/or isolation.
NB: taking a person to a quarantine facility could not be mandatory after all.
- Under Rule 4 (a) of the Prevention, Control And Suppression Of Covid-19 Rules, 2020 under the Public Health Act (Cap. 242) “a Medical officer of health or public health officer can order all persons who have attended to or been in contact with the person (COVID- 19 patient) to remain on the premises where the person was at the time of infection.”
