By Nerima Were and Allan Maleche
Taking into account our experiences as human rights lawyers working in Kenya during the COVID-19 pandemic, in this article we briefly analyze the Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles) and make a case for their utility in guiding State measures to prepare for, prevent, and respond to future pandemics consistently with international human rights law and standards.
Explaining the failure: dated laws, lack of knowledge about human rights standards
Kenya has grappled with HIV and TB epidemics in its recent past and continues to do so. From these experiences, the continuous call for action from civil society and affected communities has been to center human rights in epidemic responses and ensure that rights-based approaches remain the focal point. Despite these experiences, Kenya failed take a human rights-based approach to responding to COVID-19, as was also the case in many other countries.
One of the most glaring reasons for this failure was that the Kenyan government simply did not know how to do so. Though the government has learnt lessons in the past, and though it has codified some aspects of these lessons into our laws and policies relating to public health, it has always used a disease lens in the application of the lessons learned as opposed to a human rights lens. Therefore, when faced with an overwhelming emergency, the default mechanisms available to the State in crafting its responses were decades old laws such as the Public Health Act (1921) and Public Order Act (1950) that can be traced back to colonial Kenya. Plainly, these laws were not fit for purpose — having been passed before Kenya took on international legal obligations relating to the right to health, before Kenya was a Republic, and well before Kenya adopted its Constitution in 2010 — they were what was available.
Deepening this challenge, the enactment of new legislation during the COVID-19 pandemic — and especially in its early stages — was near impossible. Parliament suspended its operations and was unable to urgently convene and pass the necessary laws, instead it abdicated this duty to the executive. The Kenyan executive, for its part, therefore relied on these antiquated Acts to enforce measures that failed to center human rights or even to consider its human rights obligations in terms of either domestic or international law. Going forward, the Principles may help to prevent some of these failures.
Looking back to move forward: why the Principles may help in future pandemics
Crystalizing the applicable international law and standards in public health emergencies
First, the Principles bridge a much-needed gap in our understanding of public health emergencies. They crystalize existing international human rights law and standards, but they do not simply restate them. They clarify these obligations within the context of public health emergencies and provide clear guidance for States and members of society on how to navigate these emergencies. This is critical given the immediacy of responses that may be needed in the face of emergencies. In Kenya, for example, we experienced a scrambling of multiple state and non-state actors who individually and collectively failed to understand — or sometimes even consider — what their human rights obligations were. This was, in part, because they would be required to rely on multiple varying — sometimes vague — articulations of both domestic and international human rights obligations to reach this understanding. This is difficult at the best of times, and near impossible during an emergency. Because of this, many states fell back to public order policing of the pandemic and/or states of emergencies, using security tactics, techniques, and legislation as a public health tool to the obvious detriment to both human rights and public health outcomes.
Taking a systems approach to public health emergencies
Second, the scope of the Principles is broad, spanning prevention, preparedness, response, and recovery measures relating to public health emergencies. This broad temporal scope is useful in that it considers previous pandemics and lessons learned from them and obliges states to put systems — health care systems, economic systems, and social systems — in place that can both prevent and effectively respond to public health emergencies. This could help address the continued global concern that pandemic measures are limited only to addressing a disease/outbreak (HIV, Zika, TB), and not the directly related problems with existing health care, economic and social systems that help produce pandemics and/or deepen their impact.
Importantly, the Principles define a public health emergency broadly enough to capture existing pandemics and epidemics, as well as to provide guidance for how to address future epidemics/pandemics. The Principles take this view to advance States’ international obligations to develop and maintain sustainable health systems, moving each state beyond any one emergency and towards the fulfilment of the right to health for all.
Taking the responsibilities of non-State actors seriously
Third, the Principles look at the role of both State and non-state actors, including with respect to international cooperation (extra-territorial obligations), appreciating the important role that other states, companies, and inter-governmental organizations have in pandemic responses across the globe. Particularly significant, in this regard, is the clarification of the State’s oversight obligation to ensure that the actions of non-state actors are human rights compliant. While in terms of international law and standards non-state actors carry a limited range of human rights responsibilities, in light of the use of the pro homine principle in human rights, where a non-state actor is acting on behalf of the State — or performing a state function directly — their obligations are not limited to respecting human rights, but also fulfilling them. Some of our experiences in Kenya make clear the importance of this obligation. For example, some health services (such as mandatory isolation facilities) were outsourced to private actors who did not act in a human rights complaint manner (and who have yet to face any repercussions for such failures).
Further, a range of Principles address problems experienced during the COVID-19 pandemic in relation to vaccine inequity — and inequity in access to health goods and services necessary to respond to the pandemic more generally. These include: the overarching Principle of international solidarity (Principle 2); the obligation to mobilize resources (Principle 10); the obligation to ensure access to health goods, facilities, services, and technologies; the obligation to ensure legal and policy preparedness (Principle 13); and Chapter V on extra-territorial obligations. Read together, these Principles make clear that international law and standards require coordinated, collaborative, and equitable responses to public health emergencies instead of the approaches we witnessed that left Kenyans (like people in many other countries in the Global South) without access to vaccines and other health technologies for long periods of time.
These realities are consequences of an inequitable global health and economic system that is rooted in a history of colonialism and extractivism. The content of the Principles therefore represents a step forward in the application of human rights law to confront these deep-seated injustices.
Teaching an old dog new tricks
Can you teach an old dog (in this instance, States and state public health apparatus) new tricks? In our view, with the right tools you can. These Principles represent a starting point in articulating how States can build systems — health care, economic, and social systems — which, if adhered to, will allow them to prepare for, prevent, and respond to public health emergencies in a manner that is human rights-compliant.
Nerima Were is a health and human rights practitioner, and an advocate of the High Court of Kenya.
Allan Maleche is the Executive Director of the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) and a health and human rights lawyer.
