INTERIGHTS Bulletin

INTERIGHTS Bulletin
Volume 16 Number 4 2011
195
Forcible Isolation of
Tuberculosis Patients in
Kenyan Jails
Solomon Sacco, Allan Maleche and
Omwanza Ombati
Drug-resistant tuberculosis (DRTB) 1
constitutes a serious challenge to
health systems across the world, but
particularly so in Africa with high
levels of HIV infection and low levels
of state spending on health. TB is
highly infectious and the failure to
adhere to treatment regimens is a
prime cause of the development of
DRTB. In many states public health
authorities may apply to a court, or act
on their own authority, for the
isolation of patients with highly
infectious and drug-resistant strains of
TB. While such detention should and
usually does take place in hospitals, in
some countries, including Kenya,
patients are detained in prisons. States
have a legitimate interest in ensuring
that individuals with DRTB take their
medicines correctly and take the
necessary precautions not to spread
the disease. However, when they
develop a public health policy they
have to take into account the rights of
the individual to liberty and freedom of
movement and balance this against the
legitimate governmental interest in
maintaining public health. This article
will examine this balance under
international law as well as in a
number of selected countries. We will
also identify particular problems in the
legal response to the problem in
Kenya.
Rights Engaged by the Coercive
Detention of TB Patients
The rights to liberty and freedom of
movement are protected by Articles 9
and 12 of the International Covenant
on Civil and Political Rights (the
ICCPR) and Articles 6 and 12 of the
African Charter on Human and
Peoples’ Rights (the African Charter) –
both treaties have been ratified by
Kenya. The Kenyan Constitution
protects the right to liberty (or freedom
as it is termed) in Article 29, freedom
of movement in Article 39 and the
right to human dignity at Article 28.
The Kenyan Constitution 2010 also
provides that every person has the
right to the highest attainable standard
of health, which includes the right to
healthcare services. 2 However, it
should be noted that the African
Charter, the ICCPR and the
Constitution of Kenya all allow
limitations on most of the rights
protected therein, including on the
rights to liberty and freedom of
movement. 3
The extent of limitations is closely
circumscribed by international law.
The basic principles guiding a
consideration of whether a limitation
on the basis of public health is
legitimate are whether it is:
• strictly provided by the law…;
• neither arbitrary nor discriminatory;
• based on objective considerations;
• necessary to respond to a pressing
public health need (such as the
prevention of TB transmission and the
development of the disease following
infection);
• proportional to the social aim;
• no more restrictive than necessary to
achieve the intended purpose;
•…(and) of limited duration and
subject to review. 4
Protection of public health is an
important government interest on
which the state is entitled, within
certain limits, to rely when limiting
rights. Thus s 25 of the Siracusa
Principles on the Limitation and
Derogation of Provisions in the
International Covenant on Civil and
Political Rights states that:
Public health may be invoked as a
ground for limiting certain rights in
order to allow a state to take measures
dealing with a serious threat to the
health of the population or individual
members of the population. These
measures must be specifically aimed at
preventing disease or injury or
providing care for the sick and injured
(Emphasis added).
Commenting on the general principle
of the necessity of detention the
European Court of Human Rights (the
European Court) has noted that:
The detention of an individual is such
a serious measure that it is only
justified where other, less severe
measures have been considered and
found to be insufficient to safeguard
the individual or the public interest
which might require that the person
concerned be detained. That means
that it does not suffice that the
deprivation of liberty is in conformity
with national law, it must also be
necessary in the circumstances and in
accordance with the principle of
proportionality. 5
The European Court has gone on to
elaborate on the specific test regarding
detention for the prevention of the
spreading of an infectious disease:
The essential criteria when assessing
the “lawfulness” of the detention of a
person “for the prevention of the
spreading of infectious diseases” are
whether the spreading of the infectious
disease is dangerous to public health
or safety, and whether detention of the
person infected is the last resort in
order to prevent the spreading of the
disease, because less severe measures
have been considered and found to be
insufficient to safeguard the public
interest. 6
For the purposes of this paper it will be
accepted that control of persons
infected with DRTB is directed towards