Victory for TB patients as court declares that TB is not a crime

The High Court has in a judgment delivered today declared that the practice of confining TB patients in prisons for purposes of treatment is unlawful and unconstitutional. Justice Mumbi Ngugi ruled that imprisonment of TB patients is unlawful, unconstitutional and a violation of their fundamental human rights to movement, dignity and security.  The court has ordered an immediate stop to this practice.

The court further directed the Cabinet Secretary for Health to develop a policy within 90 days, in consultation with the county governments, on the involuntary confinement of individuals with tuberculosis that is compliant with the Constitution. This policy has to incorporate principles from the World Health Organization’s international guidance on the involuntary confinement of individuals with TB.

The Cabinet Secretary was also ordered to issue a circular within 30 days to all public and private medical facilities and public health officers clarifying that Section 27 of the Public Health Act does not authorize the confinement of persons suffering from infectious diseases in prison facilities for the purposes of treatment. The Cabinet Secretary is expected to update the court and the petitioners within 90 days on the progress made in complying with the court orders.

The Court reprimanded the government for failing to meet the needs of TB patients and instead resorting to extreme measures of detention in overcrowded and poorly ventilated prisons.  The Court was of the opinion that whereas isolation is justified in certain circumstances, detention in prisons is not justifiable. The Court, however, declined the petitioner’s prayers to award damages for the physical and psychological suffering occasioned by their unlawful and unconstitutional confinement for 46 days.

The Judgment brings to an end the wide spread practice adopted by Public Health Officers, of seeking court orders to confine TB patients in prison for purposes of treatment. It also triggers the process of policy and legislative reform on matters related to the rights of TB patients.

Find the decree to the judgment.

Court documents

  1. Court Decree
  2. Judgment

To contribute to the discussions on this forum follow KELIN on our social media platforms: @KELINkenya using hashtag #TBIsNotACrime

For more information contact:
Allan Maleche

Advocate for the Petitioners and Executive Director KELIN

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

4th Floor, Somak Building, Mombasa Road

Tel +254202515790; Cell +254708389870;

Email: amaleche@kelinkenya.org