Katiba Institute filed an urgent petition before the High Court in Nairobi seeking to stop the government from establishing a quarantine facility for American citizens exposed to Ebola.
It argued the arrangement is being undertaken without public participation, parliamentary oversight, or proper health and environmental assessments.
The legal research and litigation institution has sued the Attorney-General and the Cabinet Secretary for Health, with health rights organisation KELIN Kenya listed as an interested party.
In court documents filed Thursday, the petitioner alleges that credible media reports indicate advanced discussions between Kenya and the United States to establish a quarantine facility for US citizens exposed to the Ebola virus.
The petitioner through their lawyer Malidzo Nyawa allege that positioning Kenya as an “offshore quarantine site for foreign states”.
The affidavit, sworn by Katiba Institute Executive Director Nora Mbagathi, cites public statements by United States Secretary of State Marco Rubio emphasising that preventing Ebola from entering the US is a primary objective of American foreign policy.
“The impugned arrangement is being undertaken in a manner that is not transparent and is devoid of constitutional accountability, public participation, parliamentary oversight, or full disclosure of its health, environmental, and security implications,” the affidavit states.
“There is no further indication that any environmental or health impact assessment has been undertaken, notwithstanding the extreme risks involved.”
The petitioner argues that Ebola, according to the World Health Organisation, is a highly severe and often fatal disease with no universally approved cure and limited treatment options.
The petition states that the disease is highly infectious and poses a significant threat to public health systems, particularly in contexts of limited containment capacity.
The court is being asked to find that the government’s actions present a direct and immediate threat to the rights to life under Article 26 and health under Article 43 of the Constitution.
The petition further contends that Kenya lacks the specialised infrastructure required to safely manage Ebola cases.
According to the court documents, handling the Ebola virus requires a Biosafety Level 4 (BSL-4) facility, the highest category of laboratory safety equipped with specialised facilities and highly trained staff.
“In this instance, the facilities in Kenya, unlike in the USA, only fall within the category of being classified as Biosafety Levels 1 to 3 (BSL 1-3),” the petition reads.
The petitioner argue that BSL-1 facilities deal with low-risk basic biosafety procedures and are often located in secondary schools and universities.
BSL-2 facilities deal with moderate risk and are found in primary health and diagnostic facilities in national and county hospitals.
BSL-3 facilities deal with high-risk diseases such as tuberculosis and HIV but are “very limited in number”.
The court was told that only three health facilities in the entire country can currently test for Ebola.
“The least restrictive measure in this case is that the Ebola cases of US citizens be handled in the USA where there are better facilities than here in Kenya,” the petition states.
The petitioner argues that the executive’s decision to advance the arrangement without involving Parliament constitutes a clear constitutional breach, violating Articles 94, 95 and 96 of the Constitution, which vest legislative authority in Parliament and impose an oversight mandate over public affairs.
The court papers further state that the government’s failure to proactively publish information relating to the proposed facility including the full terms of any agreement, health and biosafety assessments, regulatory approvals, and operational protocols violates Article 35 of the Constitution and the Access to Information Act.
“To make matters worse, the country only became aware of the agreements when the United States of America announced the deal, which was then reported by foreign media,” the petition reads.
“The government later released a press statement confirming the discussions. It was therefore after the fact.”
The petitioner is seeking several conservatory orders, including restraining the respondents from establishing, operationalising, or permitting any Ebola quarantine, isolation, or treatment facility in Kenya pending the hearing and determination of the petition.
An order compelling the Health Cabinet Secretary to prepare and present to the court within 24 hours a contingency plan on prevention, surveillance, control, and response systems for a potential Ebola outbreak.
The institute further want the respondents compelled to disclose the full terms of any agreement with the US government, any health and environmental assessments undertaken, any approvals obtained from Parliament, and the protocols intended to govern the admission, handling, isolation, and treatment of exposed persons.
The petitioner also seeks declaratory reliefs, including a finding that the respondents have violated Articles 10 (national values), 26 (right to life), 35 (access to information), 43 (right to health), 47 (fair administrative action), and 94-96 (parliamentary authority) of the Constitution.
“The urgency of arresting this escalating constitutional recklessness and protecting the supremacy of the Constitution cannot be overstated,” the affidavit states.
“Unless this Honourable Court urgently intervenes, there is a real and imminent danger that Kenya may be converted into an offshore quarantine centre for foreign states, thereby exposing citizens to avoidable loss of life and rendering these proceedings nugatory.”
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