During a pandemic like Covid-19, the Public Health Act may be invoked in order to restrict certain behaviours and freedoms for purposes of interrupting or slowing down its spread.
Normal activities and movement may be restricted in certain areas, and the right to accept or refuse treatment and to choose a provider of your preference may be modified or restricted.
Further, the supply chain for certain commodities may be controlled in a manner that would not happen under normal circumstances, and certain services and goods may be declared public goods and come under the control of authorities.
In short, under the regulations intended to control a pandemic, certain rights and freedoms may be curtailed, and this is allowed under Article 24 of our Constitution as long as the particulars of the restriction are set our clearly and do not go beyond what is reasonably needed to achieve that purpose.
This also means that no matter what actions the authorities take, they must always be subject to the dictates of the Constitution and the law.
If the government comes to the conclusion that we are facing an existential threat as a nation, the president may declare a state of emergency during which the government may exercise even more stringent powers to deal with it. Even then, though, the exercise of those powers is subject to parliamentary oversight.
Above all, measures taken to control a pandemic must aid the overall goal of the entire process, which is to interrupt or slow down the spread of the contagion and keep the population safe.
Anything legitimate that helps to achieve this goal must be pursued with gusto; while anything, legitimate or not, that contradicts this goal must be avoided at all costs.
In the current pandemic, health authorities have established a hierarchy of control measures for different categories of persons depending on the level of risk.
For the general public, advice and regulations have been provided on hygiene and physical distancing, as well as what to do in case one develops symptoms or comes into contact with a person confirmed or suspected of having Covid-19.
For people potentially exposed to Covid-19, quarantine centres have been set up. Those that have symptoms or test positive are taken into isolation facilities, where they receive care according to the symptoms they present with.
Appropriating quarantine centres to incarcerate lawbreakers who may not have had any contact with Covid-19 defeats the entire purpose of quarantine, and exposes many people to the risk of infection in those centres.
In any case, the set-up in many of those centres falls far short of proper infection-prevention principles, with many people with unknown status mingling in the same space.
Using quarantine facilities as incarceration centres also increases stigma and reduces the likelihood of people coming forward for testing.
In the interest of slowing down or controlling this pandemic, we must stop this practice. We must devise mechanisms in the legal justice system to safely deal with lawbreakers, while leaving quarantine facilities and other treatment centres to fulfil their public health roles.
Lukoye Atwoli is Associate Professor of Psychiatry at Moi University School of Medicine; [email protected]
