No! Court blocks Kenya-US Ebola quarantine centre deal

Wait! Not that fast with the United States of America Ebola quarantine facility deal, the High Court has ruled.

Justice Patricia Nyaundi, in her orders yesterday, directed that the Kenyan government should not construct, or allow any Americans or any foreigner infected by the deadly disease to step on Kenyan soil for treatment or quarantine until the application filed by the human rights lobby, Katiba Institute, is heard and determined.

“A conservatory order is hereby issued restraining the Respondents from establishing, operationalising, facilitating, approving or permitting the establishment and or operation of any Ebola exposure, quarantine, isolation or treatment facility in Kenya pursuant to any arrangement with the United States of America or any foreign government or agency pending the inter-parties hearing of this application,” ruled Justice Nyaundi.

 In 1994, an American writer and journalist, Phillip Gourevitch, wrote an epic book on the catastrophe that happened in Rwanda, which everyone knew about, was warned about, but did nothing until it blew up, but it was too late.

It is this book, ‘We wish to inform you that tomorrow will be killed with our families’, that Katiba says in its High Court papers that the Kenya Kwanza administration is toying with by accepting President Donald Trump’s administration’s deal to bring Ebola victims to Kenya for quarantine and treatment, instead of the United States of America (USA).

USA’s Secretary of State Marc Rubio publicly said that they would not allow anyone infected by Ebola to enter the country. He insisted that the move would help them avoid unnecessary problems caused by the highly contagious and deadly disease.

It is for this reason that Katiba told the court that it was ironic for the Ministry of Health officials to accept a disease that would kill and cause problems to the public, owing to the government’s self-sacrifice to the USA.

The rights lobby group asserted that despite the World Health Organisation (WHO) warning that the disease emanating from Congo is a moving killer with no approved cure and with limited treatment options, Kenya Kwanza opted to risk Kenyans’ lives for a secret deal, which was unmasked by the New York Times, causing an uproar that prompted the Health Cabinet Secretary Aden Duale to admit in response.

“The Government of Kenya, through a secret agreement with the government of the United States of America, is about to open its borders to US citizens who have been affected by this deadly disease.”

“This level of constitutional carelessness and institutionalised defiance of the Constitution is a threat to our constitutional order. It is a demonstration of the executive arm of the government being derelict of its obligations. The Constitution requires the government to take precautionary measures to prevent its citizens from being exposed to deadly diseases,” the lobby group’s papers filed before the court by lawyer Joshua Malidzo yesterday read in part.

Katiba sued the Attorney General, Dorcas Oduor and Duale. It also cited Kelin-Kenya as an interested party.

Katiba stated that the arrangement between the President William Ruto-led administration and that of Trump has not been subjected to institutional accountability, public participation, parliamentary oversight, or full disclosure of its health, environmental, and security implications.

Further, the lobby said that there was also no indication that any environmental and health impact assessment had been undertaken to ensure, owing to the risk involved.

It argued that health is a devolved function; hence, counties ought to have also been consulted and involved. However, Katiba said that it is also unclear whether governors and members of county assemblies gave a green light.

So far, Kenya has not recorded any Ebola cases.

In court, Katiba stated that it was sheer abandonment of the mandate to protect Kenyans from harm’s way, enticed by an unknown token.

“The facts as presented disclose a potential and clear infringement of the right to life under Article 26 of the Constitution. The State is advancing arrangements that expose the population to a highly lethal infectious disease without demonstrated adherence to strict constitutional safeguards. Ebola is widely recognised as a disease with a high mortality rate and rapid transmission potential, and any State action that increases the risk of exposure to such a hazard directly implicates the constitutional protection of life,” said Malidzo.

Katiba’s Executive Director, Nora Mbagathi, said that Kenya is ill-equipped to deal with infectious diseases.

 She said that Ebola requires facilities classified as a Biosafety Level Four facility (BSL 4 facility) in addition to highly trained personnel to deal with the infectious disease.

Nevertheless, Mbagathi said that, unlike the USA, Kenya has facilities that can only handle basic, low-risk biosafety procedures at levels one to three. She further said that these are labs from high schools, universities and the highest being labs in national hospitals to test from coughs to HIV.

To add salt to the injury, she claimed that Kenya has only three level-three facilities.

She asserted that if America is rejecting her own to protect the majority, Kenya cannot be the alternative ground.

“This development follows public statements by the United States Secretary of State, Marco Rubio, emphasising that the primary objective of United States foreign policy is to prevent the entry of Ebola into the United States. In response, Kenya appears to have been selected as an alternative containment site, thereby externalising infectious disease risk management to the Republic’s territory,” said Mbagathi.

In addition, the Law Society of Kenya (LSK) and Fred Isaboke also challenged the deal. LSK’s lawyer, Jack Owino, said that the deal entailed putting up an initial capacity of 50 beds, expandable to 250.

“The threat to the constitutionally guaranteed rights to life, health, dignity and a clean and healthy environment is real, imminent and incapable of adequate remedy after the event. Time is of the essence,” argued Onyango.

Isaboke’s lawyer, Chege Kamau, argued that the decision to allow Americans to be treated in a facility built in Kenya is s unreasonable, irrational, and illegal and in gross violation of the Constitution of Kenya.

“The petitioner avers that it is incongruous and illogical for the respondents to enter into an arrangement which exposes Kenyans to the Ebola virus, while the country has a struggling, if not a crippling, health care system,” argued Kamau.