COVID-19: Salient issues that Kenya should consider and address

The Covid-19 poses challenges in the forthcoming period. While we still ponder about it, we are cognizant of many realities that in the light of the operative laws giving effect to the provisions of the Constitution of Kenya and the Bill of Rights [1].

One, that there have been medical cases under due care of persons admitted in medical facilities suffering from other cases, including palliative care to persons with a terminal illness and serious complication, which still needed attention.

Secondly, the above category of cases could be made worse if they are exposed to the killer by the medical personnel or outsiders for whatever reasons.

Thirdly, attention may be drawn to the new cases of Covid-19 victims in disregard of both the above existing cases and render their situation and life in abeyance.

But worse still, it may potent much more risk to those whose rights may be violated by the effect of losing the loved one. This would take the form of emotional, physiological, and economic impact that may further render them vulnerable.

There are also proprietary issues around death of persons, and entitlement to inheritance may become crucial and may require apt and timely intervention moving forward. Noting that the deceased would be the sole breadwinners, foster parents, and guardian, or personal representatives, administrators, or executors in the trustee of the orphaned or bereaved persons or at worse the prospective to be settlors and donors.

As reported in Italy and many other quarters [2], we have heard indisputable numbers of deaths in big numbers of old persons, besides unbiased cases of deaths across all age groups in the affected economies, and which has worsened in the last four weeks consistently. The former categories could have died intestate or after making inter vivo or testamentary will or none at all. This raises key questions as to;

 Salient questions that need answers

How do we deal with succession cases of persons, including marginalized and special persons, as per the Constitution of Kenya of 2010[3]?

Who have found themselves in any or more than any other above scenarios?

What about the children who have lost persons holding the legal ownership to their beneficial or equitable title to property and wealth?

How do we address psychosocial and emotional challenges that come with the ripple effect, especially within the nuclear families?

Who is taking care of the aged and the women who both have unique needs and require much attention and support for that matter?

Proposed Solutions

As I hinted above, the attention is much needed on the reported cases of COVID-19 and much effort so in the lives at risks falling within any of the above case scenarios in our attempts to save lives. This is because, at the end of the day, every Kenyan’s life counts and have the same right to life[4] health and clean environment[5] at the same time, without discrimination[6].

It is noted that the best antidote is prevention and controlled movements through social distancing, the highest level of hygiene and safety precaution to alleviate the speed and extend of the spread. While these actions seek to help set off the ripple effects of the same to the economy and many sectors, there is a balance that needs to be set.

That aside, I would propose the following measures that can aptly be undertaken to set an amiable balance amongst the above persons at risks and more importantly, those in need of palliative care in hospitals and hospices, those hospitalized for other ailments that require as much attention other than COVID-19, as well as the new those infected or quarantined due to COVID-19.

 Fortunately, governments have given effect to Law [7] directives, addresses [8] and orders and subsidiary legislations[9] on how to deal with persons spreading the same knowingly or with wanton disregard of the directive to quarantine or warning against those who are knowing are predisposed but proceed to associate and socialize intentionally or negligently while knowing that they are asymptomatic[10].

The state has ensured that efforts have been concerted to limit the freedoms of associating and movement within the Law, the same being justified [11]. However, in its execution, due regard should be upheld for persons with special needs, the old in enforcement without undue militant use of force.

Where incidence of deaths have resulted from the scourge, there is much need to address legal and succession matters of those who have been bereaved and hence lost beneficial support and family ties. These persons could have been successors, potential beneficiaries on trust, of donors or parents who died intestate. In fact, much and due attention would be needed on those children who have lost parents and without capacity to make decisions or rational judgment. This means that for the sake of taking actions on proprietary matters and hence will require representation. There is need to protect the women whose rights may be denied, threatened, violated, or threatened thereto, and seek remedies where needful as provided for by law [12].

The Law should act in the interest of the child, and hence a follow up should be made on the deaths to establish rights of surviving persons. The judiciary can come handy and strong to ensure legal aid and disposition of matters regarding succession and apportionment of beneficiary interests and rights in property, whether transmitted by will inter vivo or testamentary or lack any thereof. They need protection of their right to property [13] which rights should not be deprived [14].

The medical needs and challenges should be addressed with a set of medics other than those dealing with coronavirus cases. where majority of medics have been deployed to address the Covid-19 issues, a radical and rapid re-employment of medical practitioners

The corresponding cadres should be well remunerated, equipped, and rendered good working conditions and equipment needed for their work as per the Law [15]. Much concerted effort can be made for resource mobilization, through domestic donor contribution, sacrificial forfeiture of salaries by senior government and public officers and citizen contribution as has been done before.

The monitoring and timely update of resolution of the above matters and attention to the above issue would boost the government’s credibility besides actually handling matters at hand as they continue to manifest and pose far-reaching incidents. right of access to information held by state [16] which is more needed at this times,

The government should be strict and put stringent measures against misinformation and perpetrators of fake news that may have a far-reaching negative impact on the economy and health of citizens as provided by Law [17].

In conclusion, the approach to addressing the above-issued needs a multi-sectoral and public-private partnership among entities in Kenya and beyond. To address the spread, the government should liaise with private sector investors and agencies to ensure delivery of essential services that are not negotiable, such as water, electricity, sanitation, security, and public transport of the various employees and workers in a controlled and secured way. This will ensure the delivery of essential services to foster the economic and social rights that are inalienable and inviolable [18]. Then we shall manage the curfews and partial lockdowns to ensure the partial running of essential and fundamental services as well and ameliorating the spread and risk of the disease.

Bibliography

H.E Uhuru Kenyatta, President of the Republic of Kenya, ‘Presidential Address on Enhanced Measures in Response to Covid-19 Pandemic’ (State House in Nairobi, 6 April 2020)

‘BBC NEWS’

Constitution of Kenya 2010

Penal Code Cap 63 2012

Public Health Act Cap 242 2012

Public Health Act Cap 242 (Subsidiary Legislation) 2020

Michael O Okello, Holds MSc in Sustainable Urban Development, Bachelor of Land economics (University of Nairobi). He has an interest in Law, policy, and governance touching of public finance, land rights, and environment and livelihood strategies.

[1] Constitution of Kenya 2010 CHS 4 (Chapter on the Bill of Rights, touching on rights and fundamental freedoms and exceptional instances where their limitations are reasonable and justified).

[2] ‘BBC NEWS.’

[3] Constitution of Kenya Art 27 (3).

[4] ibid 4 (see Art 28).

[5] ibid 4 (see Art. 42 and 43 (a)).

[6] ibid 4 (see Art. 29).

[7] Public Health Act Cap 242 2012 ss 27 and 28.

[8] H.E Uhuru Kenyatta, President of the Republic of Kenya, ‘Presidential Address on Enhanced Measures in Response to Covid-19 Pandemic’ (State House in Nairobi, 6 April 2020) n These measures include use of protective masks, continued agricultural activities, reduction of the Tax burden and increase of disposable incomes in a wide range of tax bases).

[9] Public Health Act Cap 242 (Subsidiary Legislation) 2020.

[10] Penal Code Cap 63 2012 s 186.

[11] Constitution of Kenya, ch 4 (Art. 24).

[12] ibid 4 (see Arts. 23 (1) (2) and (3).

[13] ibid 4 (Art. 40 (1) and (2).

[14] ibid 4 (see Art 40 (3).

[15] ibid 4 (Art. 40 (1) and (2) (a) and (b).

[16] ibid 4 (See Art. 35 (1).

[17] ibid 4 (See Art. 35 (2).

[18] ibid 4 (see Art 43 on Economic and Social Rights).