Coronavirus: Omtatah sues State over forced quarantine

Activist Okiya Omtatah has filed a law suit challenging the manner in which some of the government’s measures against the coronavirus pandemic were formulated and are being implemented.

Mr Omtatah is specifically challenging sections of the Public Health Act, namely the Prevention, Control and Suppression of Covid-19 Rules, 2020; the Nairobi Metropolitan Area Order, 2020 and the Covid-19 Restriction of Movement of Persons and Related Measures Rules, 2020.

The activist is challenging the government’s decision to force people into quarantine for public health protection without obtaining an order from a magistrate’s court as required by law.

He is also opposed to the fact that those quarantined have to pay for their stay in places which are not of their choice, the arbitrary extension of their stays as well as the government’s failure to protect those affected from being infected.

Mr Omtatah argues 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 as this is Parliament’s role.

He further says that arbitrarily extending the period of compulsory quarantine for all individuals, beyond the period initially imposed, is an illegality.

“The government further broke the law by failing to ensure the people it had forced into quarantine were adequately accommodated,” he says.

The activist also says that Section 27 of the Act expressly 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 notes that the Public Health Act requires the State to foot the bills of those forced to quarantine for public health protection.

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.

Mr Omtatah says, “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.”

In his suit against the Health CS and the Attorney-General, the activist further accuses the government of failing to define the disease in the disputed rules yet it is new.

Mr Omtatah also faults the government the government for failing to take into account public participation yet it embarked on doing so in the recent Public Finance Management (Emergency Response Fund) draft regulations.

“I firmly believe strictly adherence to these principles in dealing with and seeking to combat the spread of the coronavirus is indeed a matter of life or death, the very reason why they are part and parcel of Kenya’s national values as well as principles of governance,” he says.

He adds, “It is my case that the state of affairs constitutes a gross violation of the Constitution and therefore it is invalid hence the court is enjoined to intervene. The threats and violations of the Constitution arise from the government’s irregular and unlawful enactment of laws that border on fascism.”