The Law Society of Kenya (LSK) has sued government for banning the importation, distribution and administration of Covid-19 vaccines by the private sector.
Through its president Nelson Havi, the lawyers’ lobby group wants a court to declare that the government's decision is unconstitutional and stop its enforcement.
The government is currently administering the AstraZeneca vaccine which is being offered for free to Kenyans.
In the case that LSK wants certified as urgent, Mr Havi says the ban and cancellation of licences issued to importers and distributors of other vaccines should not have been made at a time when the government has set its vaccination goal of inoculating 30 per cent of the population by January 2022.
Emergency medical treatment
He says the ban, which was imposed after a section of Kenyans started going for Russia's Sputnik V vaccine, violates Article 43 of the Constitution which guarantees the right to the highest attainable standard of health. This includes the right to healthcare services and the prohibition against denial of emergency medical treatment.
LSK is also challenging the raft of Covid-19 mitigation measures imposed by President Uhuru Kenyatta including a lockdown of five counties, cessation of movement and a change in curfew hours to now start at 8pm.
According to Mr Havi, the president's public order dated March 26, 2021 is not founded on any provision of the law, hence, it is unlawful, unconstitutional and inconsistent and violates the Constitution.
In regard to the restriction of movement rules, the lawyer says these are statutory instruments and cannot be enforced as law through arrests and criminal prosecution of the offenders in any court of Kenya without prior public participation and approval by Parliament.
Freedom of movement
"The same cannot be used to limit freedom of movement, right to enter, remain and reside anywhere in Kenya and the right to assemble, demonstrate, picket or petition and any such limitation is unconstitutional," says Mr Havi.
He argues that President Kenyatta, together with the Interior and Health Cabinet secretaries, have limited the rights and fundamental freedoms in the Bill of Rights.
In his view, the President and the two CSs erred in issuing and implementing decisions that require legislation and parliamentary approval in combating Covid-19.
He says that the public order issued by the President, the curfew declared by the Interior CS and the restriction of movement of persons declared by the Health CS do not conform to the guidelines issued by WHO in combating Covid-19.
"The three decisions are manifestly unlawful and unconstitutional and their implementation and enforcement ought to be stayed (suspended) to prevent the ends of justice from being defeated by the respondent in what is otherwise a clear unlawful and unconstitutional enterprise undertaken in the guise of combating Covid-19," he says in his petition.
Mr Havi says Kenya is yet to enact the Disaster Preparedness and Relief Act, as advised by the World Health Organisation (WHO) as a legal framework for dealing with natural disasters or other public emergencies.
"Government of Kenya has relied upon directives of the President, orders, rules and regulations issued by the Cabinet secretary for Health under the obsolete Public Health Act Cap 242 of the laws of Kenya," says the LSK president.
Kenya, he says, is also relying on orders issued by the Cabinet secretary for Interior and Coordination of National Government under the 'obsolete' Public Order Act Cap 56 of the laws of Kenya “to impose and implement unconstitutional measures to combat Covid-19”.
He argues that there is no scientific evidence of the efficacy of the night curfew in combating a health pandemic in general and Covid-19 in particular.
"Several members of WHO including but not limited to Italy and the United Kingdom have enacted legislation to enable combat the Covid-19 pandemic. Such legislation was enacted within a maximum period of 60 days and a minimum of four days of the outbreak of Covid-19 in those two countries," Mr Havi states in the court papers.
He also tells court that the Kenyan government has not given any final contingency plan, nor any report on measures taken to treat those infected with Covid-19 and prevent further infection including through vaccination.
The lawyer wants a court to issue conservatory orders suspending implementation of the said government decisions pending the hearing and determination of the case.