Addressing the COVID-19 Pandemic in Kenya: Human Rights Lessons from the HIV/AIDS Epidemic

ArticlesMay 10, 20200 CommentsKituo Cha Sheria

Global epidemics and their impact

The world has been plagued by a number of epidemics including the Spanish flu, HIV/AIDS, Smallpox, SARs and Ebola. These pandemics have had a devastating impact on the globe both in the number of lives claimed and the ravages wrought to the economies of the world.

The 1918 Spanish flu for example is estimated to have claimed at least 50 million lives with HIV/AIDs having claimed about 32 million globally. The current epidemic had topped about 270, 000 deaths at the time of writing this article. The economies of the world are threatened with collapse with China’s economy shrinking for the first time in 28 years.

Kenya and the COVID-19 pandemic

Locally, even with minimal loss of lives compared to the global statistics, the epidemic has had a devastating effect on our Kenyan economy with Kenya’s GDP expected to contract significantly. To address the economic impact on its economy, Kenya has so far sought from IMF and has been advanced by the institution Kshs. 79.3 billion.

Lessons from previous epidemics

The impact of the COVID-19 epidemic notwithstanding a number of lessons can be drawn from previous epidemics. Lessons on international cooperation and social distancing have been learned as effective measures to slow pandemics. International cooperation between the Soviet Union and the United States during the smallpox pandemic for example was hailed for the eradication of the disease. Previous pandemics may also play a key role in projecting the number of deaths and effect on economies during this epidemic.

Human rights based approaches

As we grapple with the epidemic and learn lessons from past epidemics, the past epidemics also have revealed that it is significant for states to adopt human rights based approaches to effectively combat epidemics.

Lessons from discrimination, stigmatization and criminalization of a pandemic

An investigation of how governments and societies responded to the AIDS epidemic at the initial stages of the pandemic reveal that many people were discriminated and stigmatized on the basis of their serostatus. Those who contracted the disease were mostly shunned by the society and were reprimanded for engaging in risky behaviour. The criminalisation of homosexual conduct and commercial sex work in most laws has been attributed to the restricted access to medical treatment for high risk populations.

For the COVID-19 pandemic, upon the declaration of the curfew in Kenya the police enforced the orders in the most un-proportionate and brutal manner. The brutality by the police was a clear demonstration of criminalization of the COVID-19 pandemic rather than treating it as a health concern.

In fact in the case challenging the curfew order it was argued by LSK and Kituo Cha Sheria that it was erroneous for the state to issue the curfew order under the Public Order Act which is a statute that mainly governs criminal conduct. The COVID-19 being a health emergency then the government should have issued the order under the Public Health Act.

Though the court did not quash the curfew order on the basis of the precautionary principle as a protective measure of the risk of the disease, the court recognised that for the Curfew Order to achieve its objectives and to be embraced by the public it should not be seen as a tool of force but something that aims to protect the health of the people.

The stigmatization of the COVID-19 pandemic in Kenya has been fueled by the forced quarantine, squalid conditions within the quarantine facilities and the requirement by individuals to pay for the quarantine fees. Most of the people who have been sent to the quarantine facilities have felt to be disproportionately targeted.

There is further no doubt that the use of quarantine measure to control the spread of COVID-19 has not been embraced by most Kenyans who view it as punishment. While the quarantine measure may be well intentioned it is obviously clear that the problem is that it is not people driven and its execution has been mismanaged.

The AIDS pandemic taught us that an effective control of the pandemic should recognize the presence of the disease and high risk persons without judgment. The government should then initiate all inclusive, community led campaigns to educate the citizenry to achieve de-stigmatization and tolerance in the society.

The government should also adopt initiatives aimed at curbing spread that are lawful, participatory and that apply uniformly. The International Covenant on Civil and Political Rights (ICCPR) dedicated to various rights requires that restrictions on the rights should be for reasons of public health or national emergency and must be lawful, necessary and proportionate. Restrictions such as forced quarantine must be strictly necessary, apply uniformly and recognizing human dignity.

The South African AIDS pandemic experience in de-criminalizing consensual sex has taught us that stigmatization and discrimination is reduced and in turn encourages access to adequate prevention and medical treatment. South Africa with its laws that abhor discrimination on the basis of sexual orientation remains a perfect example of governments that have overcome the barriers of HIV/AIDS prevention, treatment and care efforts.

There is no doubt then that from the South African HIV/AIDS experience, Kenya can take measures aimed at decriminalization and de-stigmatisation of the COVID pandemic to enhance prevention and treatment. Kenya can further enhance recognition, support and put in place targeted interventions for high risk populations like those living in slums and prisons as a critical measure in curbing the spread of COVID-19.


Finally, the WHO Director-General Tedros Adhanom Ghebreyesus has put it eloquently, “The greatest enemy we face is not the virus itself; it’s the stigma that turns us against each other.”

By: John Mwariri

Programme Coordinator, Legal Aid and Education Department

Kituo Cha Sheria.

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