The use of law to control specific diseases

Health Cabinet Secretary Mutahi Kagwe speaks during the daily coronavirus briefings at Afya House in Nairobi on May 5, 2020. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • The Act also sought to protect all persons from coercion into taking an HIV/Aids test by any authority such as an employer as a condition for employment.
  • In addition, the Act established a Tribunal to which grievances by persons affected or infected by HIV/Aids could be referred for redress.

A few weeks ago, a member of the National Assembly suggested that a law be passed specifically on the Covid-19 pandemic to deal with the illness at this moment and in the long term.

In this legislator’s view, the use of regulations that had been developed by the Health Cabinet secretary were a short-term measure and did not appreciate the seriousness of the pandemic and its aftermath.

Nothing short of a separate Act with exclusive focus on the pandemic would do.

This led a reader to write to me and question whether there are any other diseases or illnesses for which laws have been passed in Kenya or any other country. The short answer is yes.

While it is rare for legislation to be passed to deal specifically with a disease, there are in the laws of Kenya and other countries legislation passed specifically to deal with the social and economic problems that an illness may present to a country.

In Kenya, as in most countries, there is a public health law that encapsulates the public health initiatives, processes and procedures to be employed by the health management bureaucracy to attend to illnesses or outbreaks of disease in a country.

DISEASE OUTBREAKS

In Kenya, the Public Health Act was first enacted in 1921. Its declared objective is to make provision for securing and maintaining public health.

It contains prescriptions for public health officers or the Cabinet secretary for Health to take actions dealing with disease outbreaks.

The law speaks to the time of its passing by specific references and parts dealing with small pox and leprosy.

It makes provisions that obligate parents to ensure that children are vaccinated as soon as they are born.

This appears to be the result of the colonial heritage because many countries that were colonies of the United Kingdom all have a Public Health Act with somewhat similar provisions.

In the case of leprosy, the Public Health Act permits the Cabinet secretary to establish asylums within the country for exclusion of persons with leprosy for the purpose of seclusion while undergoing treatment.

The Public Health Act contains schedules for dealing with other infectious diseases by mandating any medical officer who treats a person who has certain infections known as ‘Notifiable diseases’ to immediately inform a public health official.

These notifiable diseases include influenza, malaria (if diagnosed somewhere around Kitale), dysentery and even Severe Acute Respiratory Syndrome (Sars)!

MEASURES FOR PREVENTION

The United Kingdom also recognises the notifiable diseases under its Public Health (Control of Disease) Act of 1984.

In their case, the notifiable diseases are cholera, plague, relapsing fever, small pox, typhus fever and even food poisoning.

The Malaria Prevention Act, which was passed in 1929, is the other legislation that seeks to empower health authorities to take measures for the suppression and prevention of malaria.

It allows a health official to enter any property for the purpose of facilitating draining out of pools of water in which mosquitoes as malaria vectors could breed.

This Act is the first law in Kenya that carries the name of an illness in its title and has exclusive focus on dealing with the disease.

It goes to show how serious malaria was and still is as a health challenge in Kenya.

The other legislation that specifically carries an illness in its title is the HIV Aids Control and Prevention Act.

Enacted in 2006, the law was the response to the HIV/Aids pandemic of the last decade of the 20th Century and the first decade of this century.

The Act seeks to provide measures for the prevention, management and control of HIV and Aids, to provide for the protection and promotion of public health and for the appropriate treatment, counselling, support and care of persons infected or at risk of HIV and Aids.

It seeks to provide the right to confidentiality regarding the health status of persons living with HIV/Aids and prevents discrimination and ostracisation of persons with the disease.

CRIMINAL OFFENCE

An important component of this Act was to provide HIV/Aids education and information across the country to help prevent further infections and guide the population to remove stigma from persons suffering from HIV/Aids.

The Act also sought to protect all persons from coercion into taking an HIV/Aids test by any authority such as an employer as a condition for employment.

In addition, the Act established a Tribunal to which grievances by persons affected or infected by HIV/Aids could be referred for redress.

An important criminal sanction in the Act was the fact that it made it a criminal offence for a person to knowingly infect another with HIV/Aids.

There is also a ban against the involvement of HIV/Aids patients in biomedical research of any kind without their full consent.

Parliament was again responsive to the rising incidence of cancer in Kenya with the law on that illness: The Cancer Prevention & Control Act of 2012.

The law seeks to provide for prevention, treatment and control of cancer. In terms of institutional design, this is in my view the most far-reaching law in seeking to address a disease in Kenya.

It established the National Cancer Institute as a state corporation. This institute has the responsibility of, among others, providing public awareness on the causes, consequences and means of preventing cancer.

AWARENESS

It is also tasked with monitoring and making recommendations to prevent discrimination against persons suffering from cancer.

It is also required to participate in training programmes on cancer control and prevention in Kenya. This training and awareness role is intended to start with the curricular of schools in Kenya.

The law expressly prohibits discrimination against cancer patients in employment, education or in the provision of healthcare.

It also prohibits the compulsion of anyone to undergo cancer screening as a condition for a loan, insurance or employment.

As part of the intended support and monitoring of cancer in Kenya, the National Cancer Institute is required to keep a National Cancer Register for the country.

This is to be a record of all diagnoses of cancer patients in the country and the kinds of cancer that they are found to be suffering from.

It is meant to aid in follow-up for the purpose of care and support and to aid in cancer research in Kenya.

It does appear that diseases will take up the legislative time if they are deemed to present a special threat to the society that requires a customised law. Otherwise, the general law on public health will do.

The writer is Head of Legal at Nation Media Group PLC