The High Court has declared as unconstitutional the government’s decision to force people into mandatory Covid-19 quarantine centres and forcing them to pay for their upkeep.
Justice James Makau said the decision was illegal and contrary to the Public Health Act as the government had not obtained an order from a magistrate's court as required by law.
He ruled that the actions of the government were contrary to Section 27 of the Public Health Act which provides that the cost of such mandatory isolation must be met by the government.
This section of the law provides for isolation and detention on a certificate signed by the medical officer of health and an order of a magistrate of persons who may be infected with a notifiable infectious disease.
While ruling on a petition filed by rights activist Okiya Omtatah, the judge said the Ministry of Health violated rights of those it forced into quarantine for public health protection.
The court flagged the government’s decision to charge those quarantined as unlawful way to combat the Covid-19 pandemic and that the government was supposed to foot the bills.
At the same time, the judge declined a request by the activist that government should refund the money it collected from persons forced into the Covid-19 quarantine centres.
The activist wanted the court to compel the State to refund in full, and with interest at the courts' rates, the money each and every person in quarantine was forced to pay for their upkeep.
But Justice Makau said the issue was not particularised, specifically pleaded and strictly proved by the activist.
“The county governments who are required to make payments having not been joined as parties (in the petition), the claim for refund is not proved and is declined,” said the judge.
Mr Omtatah moved to court after the government decided to force people in quarantine centres and started charging fees of their own confinement.
He told court that Section 27 of the Public Health Act provides that such compulsory isolation must be at the cost of the local authority of the district where the person requiring the isolation is found.
He also noted that the Public Health Act requires the State to foot the bills of those forced to quarantine for public health protection.
“There is no power under Section 27 for the government to require persons whom it believes are not accommodated in such a manner as is adequate to guard against the spread of the disease to meet some or any of the costs of providing the required adequate accommodation,” said Mr Omtatah.
He further argued that Health Cabinet Secretary Mutahi Kagwe exceeded his powers to make regulations under section 36 of the Public Health Act by purporting to create criminal offenses and penalties, which is the preserve of Parliament.
“The government broke the law by failing to ensure the people it had forced into quarantine were adequately accommodated,” he said.
He added that none of the regulations issued by the Ministry of Health defined what the disease is despite being caused by coronavirus 2 (SARS-Cov-2) which is being new and previously unknown - both in law and health.
