SAN FRANCISCO — At the outset of the COVID-19 crisis, the Kenya Legal & Ethical Issues Network on HIV and AIDS petitioned the country’s government to adopt a human rights-based approach rather than one that is criminal and punitive, but its efforts were unsuccessful.
“The police were trying to work within the presidential directive, and in the process they used excessive force. And from that point, we started operating from a point of fear and intimidation,” Allan Maleche, executive director of KELIN, told Devex.
Since the coronavirus restrictions began, Kenya has recorded almost 20 police-linked deaths and many more cases of brutality. The country seems not to have learned the lessons from HIV/AIDS, such as the consequences of criminalization, Maleche said.
More than 80 countries have announced a state of emergency in response to the COVID-19 outbreak, according to the Office of the United Nations High Commissioner for Human Rights.
This gives states additional powers to limit some rights to protect public health, but in some places it has led to excessive and deadly force, particularly against the most vulnerable segments of society.
The legal enforcement of coronavirus restrictions serves as a reminder of how the law can help or hinder the public health response. The misuse of criminal law can damage trust in government services, creating disastrous results for public health, experts told Devex. So how can countries facing a public health crisis enforce the law while also protecting the well-being of their citizens and adhering to international human rights standards?
Strengthening legal frameworks to battle COVID19
A new initiative aims to collect legal documents from the coronavirus response to learn from the laws that were implemented and ensure more effective ones going forward.
On Wednesday, a range of partners — including the United Nations Development Programme, World Health Organization, UNAIDS, and the O’Neill Institute for National and Global Health Law at Georgetown University — launched the COVID-19 Law Lab.
The database will contain legal documents from around the world and share best practices to help countries avoid poorly designed laws, which lead to can lead to stigma, discrimination, and violence.
“Strong legal frameworks are critical for national COVID-19 responses,” said Tedros Adhanom Ghebreyesus, director-general of WHO, in a press release. “Laws that impact health often fall outside the health sector. As health is global, legal frameworks should be aligned with international commitments to respond to current and emerging public health risks. A strong foundation of law for health is more important now than ever before.”
Sofia Gruskin, an expert in health and human rights who directs the University of Southern California’s Institute on Inequalities in Global Health, said the scale of abuse she is seeing in the name of public health amid the pandemic is greater than anything she has witnessed in decades.
Sometimes, limits on rights for the sake of public health are needed, as long as they are the least restrictive alternative, necessary and backed by evidence, and not imposed in an arbitrary or discriminatory way, she said.
“Countries are meant to show how any such restrictive measures are strictly necessary to curb the spread of the disease they are aimed at and ultimately promote peoples health, rights and freedoms,” Gruskin wrote in an email to Devex.
There has to be oversight and accountability, she said. And if the original rationale for imposing a restriction no longer applies or it is found to be ineffective in public health terms, then it must be lifted without delay, she added. The problem with the coronavirus response is not that rights are being limited, but rather how that power to impose restrictions is being misused, she said.
Using law enforcement agencies to enforce COVID-19 measures can raise challenges if they are given an overly broad mandate without effective oversight, if police or other security forces lack training and skills in responding to public health emergencies, and if the manner of enforcement violates human rights, said Mandeep Dhaliwal, director of UNDP’s HIV, Health and Development Group.
“Mass arrests and detention in situations that make it impossible or difficult to maintain physical distancing or other preventive measures will undermine rather than advance the public health measures,” Dhaliwal said in an email to Devex.
Governments, NGOs, donors, and international institutions all have a role to play in strengthening public trust in the government’s response, which Dhaliwal said is more likely to lead to compliance with public health measures, compared with strict law enforcement.
This pandemic is a justice crisis, said Vivek Maru, CEO of Namati, an organization focused on grassroots legal empowerment.
“Using criminal law or using punitive approaches only serves to drive people underground.”— Lisa Owino, program associate for health and governance, KELIN
“There are many good laws on the books, which in principle protect people against discrimination and abuse. But those laws don't implement themselves. For laws to come to life, ordinary people need to understand and use them,” he said in an email to Devex ahead of the launch of the COVID-19 Grassroots Justice Fund, an initiative to raise and distribute money to rebuilding efforts led by grassroots justice groups.
Maru said he hopes to see every COVID-19 response package include an investment in the work of legal empowerment.
Enabling access to justice
At the 23rd International AIDS Conference — known as AIDS 2020 — earlier this month, experts highlighted how governments, NGOs, and donors responding to COVID-19 can take notes from strategies used to fight the 40-year-old epidemic.
One key lesson from HIV/AIDS is the importance of treating diseases as public health issues, not criminal issues.
“A legal environment that respects, protects and fulfils human rights, and promotes overall health and well-being, is an efficient and effective means of reducing the risks and the toll of HIV and other communicable infections on people, communities and resources. While laws alone are insufficient to achieve these objectives, bad laws are serious impediments to health and good laws can contribute to good health,” the Global Commission on HIV and the Law states.
In a recent webinar that KELIN organized on the role of policing in a pandemic, panelists said the Kenyan government has used punitive measures — for example, quarantining people who defy curfew orders, including health workers who have reason to do so.
“Using criminal law or using punitive approaches only serves to drive people underground,” said Lisa Owino, KELIN’s program associate for health and governance.
The response to HIV/AIDS reveals that when people — particularly criminalized populations that also tend to be the most vulnerable to infection — are afraid to seek health care because they think they could be arrested or harassed, infection rates will not go down, she said.
The webinar featured Jones Blantari, assistant commissioner of police for the Ghana Police Service, who discussed how police forces in Ghana are playing not just an enforcement role but also an informative role, such as by debunking rumors that excessive alcohol intake can prevent COVID-19 infection.
Demas Kiprono, Amnesty International’s campaign manager for Kenya and a participant in the webinar, said in a follow-up email to Devex that he does not think law enforcement officials in Kenya feel like a part of the communities they serve.
“I think the political and police leadership are more in touch with and responsive to the plight of the people they serve in Ghana as opposed to Kenya,” he said.
Kiprono said that Kenya should enhance community policing as Ghana has done to reduce the violent interactions that happen disproportionately in remote and urban poor areas where access to justice is a challenge.