Ethical and legal issues from public health emergencies

Ethical and legal issues are arising from the manner in which well-meaning directives are being implemented

In Summary

• Convention allows suspension of most civil, political rights during a public emergency

• However, enforcing such interventions need to lead to abuse of freedoms and rights

Mombasa residents scamper for safety as police enforce the nationwide curfew on March 27
Mombasa residents scamper for safety as police enforce the nationwide curfew on March 27

The occurrence of an influenza pandemic, such as Covid-19, brings about high rates of mortality and morbidity, and in the 21st century, where globalisation has made the world a village, effects are likely to be felt in every country.

Given that at first, medical interventions, such as specific treatment and vaccines, may not be readily available, adoption of non-pharmaceutical public health interventions is key in countering and mitigating the effects of the pandemic. These interventions are important as they protect communities by reducing transmission and the number of infected people, at least before medical solutions are arrived at.

These interventions include surveillance, isolation and quarantine, movement restrictions, personal and community hygiene and social distancing, among others. However significant the interventions may be, they stir substantial ethical and legal issues, which are focal to a community’s commitment to freedom and social justice.


Individual freedoms and rights are at risk of being abused during the implementation and enforcement of such interventions, and it is, therefore, important to respect and consider public health ethics and human rights principles while laying them down.

Internationally, human rights are stressed as important and inherent to all human beings. They are held as universal and everyone everywhere is entitled to enjoy them. However, in the face of a public health threat, these rights and freedoms can be restricted, and it becomes a difficult task in striking a balance between existing individual rights and the public health threat. This then proves the importance of having in place articulate public health ethics that would inform this balance in the event of a pandemic.

The Universal Declaration of Human Rights is one of the instruments that protect and promote human rights internationally. It holds that human rights are the highest aspiration of the common people, and human beings are born free and equal in dignity and right.

The most relevant rights to the ethics of public health interventions are provided for in this declaration, which over time has attained customary international law status. They include: right to freedom, right from arbitrary arrest, right of movement and residence within and between borders of each state, and right to freedom from discrimination.

The International Covenant on Civil and Political Rights, being a key instrument in promoting human rights, provides that fundamental guarantees are so essential and no state may derogate them, even in a time of emergency.

However, it allows member states to suspend most civil and political rights in time of a public emergency that poses a threat to the life of the nation. The International Covenant on Economic, Social and Cultural Rights on the other hand having provided for right to health, requires member states to take necessary steps to prevent, treat and control epidemics.

Basically, these international laws give guidelines on how states should respond to pandemics while observing human rights. For this to happen, states are expected to adopt interventions that are in accordance with the law and based on legitimate objective. They should also be strictly necessary in a democratic society, be least restrictive and intrusive and should not be arbitrary, unreasonable or discriminatory.


Even with such guidelines in place, states still fail to uphold ethics and human rights, and one of the things that can be attributed to this is the question of authority; who holds the authority to exercise public health powers?

Kenya has been vigilant in the fight against Covid-19 and has adopted interventions in this regard. Though in the spirit of mitigating the public health risk posed by Covid-19, the implementation of some of these interventions, specifically the evening curfew, has to some extent proved unethical.

This follows the events of the first night when the curfew directives came into force, whereby some Kenyans faced police brutality that led the Law Society of Kenya to challenge the legality and the constitutionality of the curfew. In as much as the current curfew is important, it should not be carried out in a manner that is arbitrary or unreasonable.

The Ministry of Health has also adopted strict surveillance measures that involve rapid diagnosis, screening, reporting of cases and contact tracing. Social distancing has also been fronted as a measure towards reducing community transmissions.

This has disrupted the social and economic lives of Kenyans, especially those with limited resources. Most of the religious places remain closed, and the attendance of some events, such as funerals, has been limited to 15 people.

Though this intervention has restricted some individual rights and freedoms of Kenyans, it is reasonable and should continue being in place. Maybe as the number of infected people rises and poses more risk of infection, the government should borrow from what other jurisdictions are doing in providing basic necessities to citizens who cannot afford to stop working and still have something to eat.

The Ministry of Health is also isolating those who have tested positive for Covid-19 as they undergo treatment, while holding in quarantine those who have been exposed to the disease to prevent transmission in the event they have been infected. This intervention has made it easier to contain the spread of Covid-19, especially by people who came into the country having been exposed to the disease.

Though the efforts by the Ministry of Health and the government at large cannot be undermined, more needs to be done to empower our strategic plans on pandemic preparedness and response in light of upholding human rights and public health ethics.

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