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Human rights-based approaches to addressing Covid-19 pandemic

April 21, 2020 By: MUHURI

This report spans from March 11, 2020, when the World Health Organization (WHO) declared coronavirus a global pandemic, through to March 13, when Kenya recorded its first case, and to April 21, 2020. This document is exploring human rights-based approaches to defeating the lethal virus that has killed at least 171,000 people globally, infected over two million, and continues to ravage the world.

Context

Coronavirus, which causes Covid-19 disease, struck Kenya at a time when the country is partially implementing the 2010 Constitution. Drafters of the law, and millions of Kenyans who passed it a decade ago, envisaged it would make the society just – and not oppressive, unequal or discriminatory, as is. The pandemic has exposed Kenya’s underlying challenges, which MUHURI is capitalizing on to address past structural injustices, by using the transformative framework of the constitution.

Therefore, based on the lenses of the 2010 Constitution, our reflections, and the views of many other Kenyans, MUHURI makes the following recommendations:

1. Working within the Constitution

All efforts directed at addressing the pandemic should be done per the Constitution. The basic philosophy, principles and values of the Constitution should be respected and used to inform our collective response.

2. Learning from other countries

Kenya can learn from countries ahead of it in the pandemic, by taking a cue from their workable strategies – targeting missed opportunities and mistakes – in containing the virus. We must contextualize this experience but be cognizant that Kenya has unique constitutional, social, cultural, historical, economical, and pollical systems. No cut, copy, and paste of other nations’ responses, as it will not work.

3. Theory of the response to the pandemic

The theory and philosophy informing the global response have relied on state security lenses. The planning of the response, to a large extent, has been executed as a security operation to protect the state. The use of military and war-planning, and jargons like “war and siege mentality”, may have a negative effect of alienating the people. Government officials have conceptualized the coronavirus as posing an existentialist threat against the state, thus many of the measures contemplated are designed to protect the state. This is the security, law, and order approach.

The use of terms such as “aggressive measures, attack, defeat the enemy, war,” and so on, has created a mentality that justifies lockdowns, complete shutdowns, curfews, limitation of rights, security patrols, violent attacks against those who violate orders, arrests, the establishment of detention centres, shoot-to-kill orders, and so forth.

These models, from war scenario playbooks and given to security forces, will only be implemented at a high cost against civilian populations. For example, terms such as a “lockdown or total shutdown,” are not technical terms that mean specific things in all places and time. They mean different things to different people in different circumstances.

The common denominator of such terminologies is that they involve extreme measures from a security perspective. To countries that have a history of colonialism, war, and other social upheavals, such terminologies trigger fear and despondency based on bitter memories.

These approaches will lead to gross human rights violations, especially against the poor, marginalized and vulnerable groups in society, who are the majority in Kenya. When people are made to choose between starvation and death, and against breaking curfew guidelines, they will likely choose to venture outside for food.

This approach sees the role of government as giving directions and orders to the people, making decisions for the state, preserving law and order, waging war against the coronavirus and “disciplining” and “neutralizing” people who will not follow government orders and guidelines. In extreme circumstances, they may also make decisions on who gets support and who doesn’t, who lives and who dies.

In this approach, the participation of the people is not necessary – the government only demands compliant citizens. Any divergent view is rejected and vilified and may cause grief to those who espouse them. This approach is counterproductive and may result in resistance and social unrest.

4. Restorative justice and the human rights approach

MUHURI believes that it will be better to conceptualize the coronavirus as posing a challenge to humanity. The virus will undermine the wellbeing of people and communities. Thus, the response to the virus will be to protect the people, strengthen communities, and facilitate them to cope with the complications arising from the pandemic.

This approach will focus on enhancing the dignity of the people, healing, building solidarity, leveraging community capital, emotional intelligence, and cultural intelligence.

The cornerstone of this approach is respect of the people and the meaningful participation in finding solutions to the coronavirus pandemic.

The response under this approach will first focus on the interest of the people, involving them in making decisions on how best to respond to the pandemic, based on their sovereign power. This is a human rights approach, which seeks to safeguard the people and their wellbeing.

Even when faced with difficult choices under difficult circumstances, and contemplate extraordinary measures, you can use a human rights approach. You can contemplate extraordinary measures in terms of the wellbeing of the people by taking actions designed to enhance human dignity, peace, safety, human security, community resilience and survival. The world has had a lot of experience in the use of humanitarian and human rights-based approaches after great calamities, such as those used in peacebuilding processes.

This approach is also informed by international humanitarian law, standards and values used in humanitarian and peace missions. The strategy is effective, resilient and focuses on human ingenuity, creativity and solidarity. They also limit the effects of individual and collective trauma caused by pandemics like coronavirus.

5. Respecting human rights

Kenya’s 2010 Constitution calls for a human rights approach. During extraordinary times, like now, the Constitution provides principles and guidelines on how to address teething problems. The Constitution mainstreams and adopts international principles, norms, instruments and standards.

Based on these foundations, some of the human rights aspects that must be considered in responding to the pandemic include:

A) Mainstreaming the principles of equality and equity including;

  • Ensuring all citizens are not only treated equally but also, addressing the structural vulnerabilities, by extending special affirmative actions to those in greatest need.
  • Understanding women and girls will be impacted differently and disproportionately by the pandemic. Based on our past discrimination and gender roles, the response must develop gender-sensitive interventions.
  • The elderly and those who have some types of pre-existing medical conditions face higher risks from the pandemic and may require more care or extra resources.
  • Ensuring all counties receive the necessary support based on needs, and outlawing all illegal and unconstitutional considerations as the basis of giving them support in the response.
  • Creating special measures and arrangements for persons with disability to cope with the pandemic, including providing appropriate Information, Education and Communication (IEC) materials in appropriate formats like braille and Kenyan sign language.
  • Ensuring the response measures is not discriminatory.

B) Right to life;

The right to life is the cornerstone of the 2010 Constitution, and response to the pandemic should be based on safeguarding it. The governments must be directed by the imperative of protecting the life of every person in Kenya.

C) Human Dignity;

The Constitution recognizes human dignity and directs it must be respected and protected in death and life. The response should reflect this ethos, protect Kenyans, and uphold their dignity throughout. When citizens are infected with coronavirus, they must be treated and taken care of with dignity. If they pass on, their remains should be treated and interred with dignity.

D) Guaranteeing the economic and social rights under Article 43 of the Constitution, including;

  • The right to healthcare during the pandemic.
  • Reasonable standards of sanitation.
  • To be free from hunger, and have adequate food of acceptable quality.
  • Access to clean and safe water in adequate quantities.
  • Access to emergency medical treatment, and;
  • Access to appropriate social security to persons who are unable to support themselves and their dependents.

During the period of response to the pandemic, the national and county governments must not charge the mandatory provision of necessary survival products and services, including foodstuff, water, cooking gas, charcoal and firewood, sanitary towels, medicines, and other essential items. The governments must give special attention to the needs of children, the elderly, the sick and other vulnerable groups.

Given past discrimination and injustice, the majority of those who live in Kenyan cities, stay in informal settlements. Therefore, these settlements require more allocations based on the needs and number of people. The government response and resources allocation should consider the needs of the people. Further, the government should extend affirmative actions and other measures to address historical injustices and past skewed development.

During the response period, the state should:

  1. Not allow any evictions, not related to the response, of citizens from their ordinary places of residence or work.
  2. Provide the necessary means of survival and assistance to neighbourhoods to cope with the challenges of the pandemic.
  3. Not discriminate in any way against any neighbourhood or community.

For the avoidance of doubt, special measures, including affirmative actions taken to address injustices of the past and inequalities, shall not be construed to constitute discrimination or unfair practices.

E) Radical investment and expansion of public health services;

The lack of adequate investment in public health services over the years has made Kenya poorly prepared to deal with coronavirus pandemic. The country has no choice but to massively invest in public health. Currently, there is an acute shortage of personnel, equipment and essential services and products, to deal with the pandemic. MUHURI recommends the following:

  • An urgent mass hiring and posting of all available medical personnel. The recruitment of volunteers with medical backgrounds, including second-years in medical schools.
  • Posting of medical staff from the discipline forces to places with the greatest need.
  • Provision of essential products and services for the treatment and management of the pandemic, including protective gears, breathing support systems, expansion of critical care facilities, provision of medicines, etcetera.
  • Increasing the capacity and facilities for mass testing and isolation.
  • Increasing medical support systems, including administration and ambulance services, water, continuous electricity, and so forth.
  • Taking over and designating all private hospitals as public facilities.
  • Mobilizing and working with community health workers, volunteers and Civil Society Organizations (CSO).
  • Outlawing discrimination and addressing stigma.
  • Protecting patients’ confidentiality.

The government should review the takeover or designation of private hospitals as public facilities after one year.

The national and county governments need to rapidly develop and implement a special safety net and procedures to protect health workers — and their families — and those providing support services to medical facilities.  The state must treat and care for those who will fall sick during the pandemic, and offer relevant support to their families. Those who die or incapacitated during the pandemic, their families should be entitled to reasonable compensation from the state.

F) Provision of temporary accommodation;

During the coronavirus response period, the national and county governments must provide temporary accommodation to those in need. In the past major social disruptions, the government housed Kenyans in religious buildings, stadiums, parks, or open grounds, and gave limited or no adequate services and essential survival products.

During this pandemic, the state must provide accommodation in boarding schools, colleges, universities and similar institutions, which already have running water, proper sanitation, electricity, and sleeping and cooking facilities. This will happen, provided:

  1. A person voluntarily chooses to shelter at the temporary structures provided by the government.
  2. The government establishes humanitarian and dignified conditions in temporary accommodations, including the provision of adequate food, water, sanitation, sleeping arrangements, etcetera. The conditions must also offer separate facilities for men and women, families, the elderly, persons with disabilities, and have special consideration for the wellbeing of children.
  3. The government provides reasonable facilities, services and products for the care of children, the elderly, persons with disabilities and women. Appropriate toilet facilities, pampers, sanitary towels to be given to girls and women.
  4. The government allows, without hindrance, a person to leave the facility, if he so wishes.
  5. The government facilitates those leaving to reach places they want to go, so long as they are within the county where the facility is located.
  6. Those who enter the voluntary accommodation facilities retain their rights, including the right to communicate with those outside the facilities.
  7. The government doesn’t charge a person who enters and stays at a temporary shelter.

If the pandemic worsens, the government should consider the use of airports and other relevant spaces.

G) Voluntary or mandatory quarantine and isolation;

This covers a person who may quarantine wilfully or has been restricted by the government, as per the law. A person who is in quarantine:

  1. Must be issued with an admission instrument specifying the terms and conditions of admission, which must be under the law and the Constitution.
  2. The government must meet all the costs covering the period of the quarantine.
  3. The government must establish humanitarian and dignified conditions for the quarantined, including the provision of adequate food, water, sanitation, sleeping arrangements, etcetera. The conditions must also offer separate facilities for men and women, families, the elderly, persons with disability and have special consideration for the wellbeing of children.
  4. The government must provide reasonable facilities, services and products for the care of children, the elderly, persons with disability. For women and girls, the government should avail appropriate toilet facilities, pampers and sanitary towels.
  5. Persons in the quarantine shall retain all their rights under the Constitution, save for reasonable conditions necessary for the quarantine that are compatible with the law.
  6. Special care and arrangements should be made for the mental health and wellbeing of those in quarantine.
  7. The person in quarantine should have the right to retain appropriate communication with those outside the quarantine facilities, including keeping a private phone or other communication devices, and access to a free phone call of not less than ten minutes, twice a week.
  8. A person should not be held under quarantine for more than 21 days (unless there are compelling and justifiable medical reasons).
  9. Where there is a valid reason for holding a person for more than the initial 21 days, the following should apply:
  • A new instrument specifying the nature of the reason requiring an extension must be documented.
  • The person recommending an extension must take personal responsibility for the recommendation.
  • The person facing an extended quarantine should have the right for an independent review of the extension recommendation and the right for legal representation.
  1. At the end of the quarantine, a certificate for the completion of the quarantine should be issued by the quarantine facility to the person leaving the facility.
  2. The government must facilitate the return of those leaving the quarantine to their home or a place of their choice within the county where the quarantine facility is located.
  3. The government running the quarantine facility must be held, collectively and individually, responsible, for any violations of rights or wrongdoing under its jurisdiction.

H) Right to Access to information;

The public must have access to critical information relating to pandemic and health, which will allow them to make informed decisions and choices. Withholding of critical information, disinformation and misinformation by any party, including government, may put citizens at risk and should be discouraged.

The government should not criminalize or interfere with sources holding alternative narratives and perspectives, access to information and call to account official action or inaction.

We recommend that the government should avail information relating to coronavirus pandemic and the response, in Kiswahili, English, local languages,  braille, and Kenyan signs.

I) Freedom of speech;

Freedom of speech during the pandemic is critical to allow the articulation and exchange of ideas, including those questioning and holding government officials to account. The limitations contemplated by the Constitution shall apply.

J) Persons in prison and remand facilities;

MUHURI appreciates the government’s efforts of safeguarding inmates by decongesting the prisons and police stations. But we demand relevant authorities to publish the objective criteria they used in reducing sentences and releasing those serving jail terms or were being held in police custody. We hope such criteria will include the age, health status – particularly targeting those with underlying medical conditions that put them at higher risk of contracting coronavirus.

We demand the authorities publish safeguarding measures it took to suspend prison and remand visits during the pandemic.

We also demand the government to accord those in prison and remand facilities the right to phone their families and a person of their choice, once per week, as visits remain suspended.

K) Rights of undocumented persons;

During the pandemic, services, including information, testing, and treatment, should not be denied on reasons that one is not possessing an identification document. There are many persons, like street families and those from marginalized communities and areas, who do not possess identification papers. Interim measures of documentation should be used to provide protection and support.

L) Rights of refugees;

Kenya and the international community are still duty bearers for the protection and guaranteeing the wellbeing of refugees. They should work to provide the necessary support to the refugees, which should be equivalent to those extended to Kenyans.

M) Rights of persons in transit;

Persons in transit stranded due to the closure of Kenyan borders should be given the same support, at the state’s expense, as that extended to Kenyans. This support may include the provision of temporary legal status that allows them to stay in Kenya until they can travel safely out of the country. The Government should deport no one during the pandemic period.

N) Rights of Kenyans abroad;

The national government should use state resources and Kenyan foreign embassies, to protect, support and cater to the wellbeing of Kenyans outside the borders. The intervention should involve third parties in case Kenya does not have consular services in affected nations. The government should also monitor any human rights violations against Kenyans abroad.

O) Limitations of Rights during the pandemic;

The government’s responses should abide by the Constitution, and any proposal to limit rights must conform to the letter and spirit of the law. Any proposal to limit rights under the Constitution should comply with the following principles in Article 24:

  • A right or fundamental freedom in the Bill of Rights shall not be limited except by law.
  • A right or fundamental freedom can only be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including:
  1. The nature of the right or fundamental freedom;
  2. The importance of the purpose of the limitation;
  3. 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; and
  4. The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Further, any provision in any legislation seeking to limit a right or fundamental freedom should:

  1. Not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or fundamental freedom to be limited and the nature and extent of the limitation; and
  2. Not limit the right or fundamental freedom so far as to derogate from its core or essential content.
  3. In case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

Further, the Constitution requires any limitation in case of emergencies to be enacted per the law. The restrictions must be subjected to these requirements:

  • The circumstances warranting any limitation.
  • Must be for a limited period.
  • Must get parliamentary approval.
  • Must be consistent with international law.
  • Must not permit or authorize the indemnification of the state, or any person, in respect of any unlawful act or omission.
  • The Supreme court may decide on the validity of any declaration.

Above all, the Constitution identifies certain rights and fundamental freedoms, under Article 25, that shall not be limited. They are:

  • Freedom from torture and cruel, inhuman or degrading or punishment;
  • Freedom from slavery or servitude;
  • The right to a fair trial, and;
  • The right to an order of habeas corpus;

5. Security services

Those providing security services should be equipped with the necessary tools to perform their work, including the provision of protective gear against the pandemic. The planning and carrying out of their responsibilities must consider the nature of special duties they are performing. They should be entitled to special insurance and be paid special allowances. Security services should bear responsibility for any human rights violations at both corporate and individual levels.

6. Promoting, protecting and monitoring of human rights during the pandemic

The constitution commissions and independent offices established under the Constitution must publish the necessary instruments, standards and work plans they have developed to be used during the period of the pandemic. The national and county governments should involve the relevant commissions and independent offices in their responses.

7. The role of non-state actors

Non-state actors like the faith-based communities, workers, private sector, Non-Governmental Organizations (NGOs), and other members of the civil society, should not be hindered to carry their work in response to the pandemic. Human rights organizations and rights defenders monitoring the state of human rights during the pandemic, should not be blocked or frustrated from carrying out their work.

To make the response comprehensive, integrated and participatory, the government should involve citizen formations in the designing, planning and implementation of the response to the Covid-19 challenges.

Conclusion

MUHURI believes the government’s use of security approach will not protect Kenyans effectively. Instead, it will cost many lives, unnecessarily prolong the effects of the pandemic, and result in human suffering. This strategy can also lead to unintended negative consequences that the government may not have control over.

We believe a comprehensive, integrated and participatory response – informed by a human rights approach focusing on restorative justice for all Kenyans – offers a better chance of addressing the pandemic and its complications.

Further, this approach will not only address our past or work to find solutions to our present challenges but will also start investing in constructing a new future which is juster.

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