The government through the office of the Attorney General for the second time failed to send a representative to court for the mention of the case challenging the constitutionality of unlawful incarceration of TB patients (Petition No 329 of 2014). The purpose of the mention was to confirm whether the government had complied with orders issued by the court in particular filing an affidavit to confirm compliance.
In a judgment delivered on 24 March 2016, the High Court declared that it is unconstitutional and unlawful to jail TB patients who had challenges adhering to TB medication. The Court, in the judgment ordered the Cabinet Secretary Ministry of Health to:
- issue a circular clarifying that Section 27 of the Public Health Act does not authorize confinement of persons suffering from infectious diseases in prison;
- develop a policy on the involuntary confinement of persons with TB and other infectious diseases; and
- file an affidavit in Court detailing the policy measures put in place on the involuntary confinement of persons with TB and other infectious diseases.
Since the judgment was delivered, the government has partly complied with the orders and issued a circular to health facilities clarifying that the Public Health Act does not authorize confinement of TB patients in prisons. It is also noteworthy to report that the process of developing a TB isolation policy in consultation with relevant stakeholders is underway.
The case will now be mentioned again on 22 May 2017 for the government to outline the status of compliance by filing an affidavit in Court.
To contribute to the discussion and for live updates follow KELIN on our social media platforms: Twitter: @KELINKenya using hashtag #TBisNotACrime
For more information contact:
Executive Director, KELIN
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
4th Floor, Somak Building, Mombasa Road
Tel +254202515790; Cell +254708389870;