CS Duale defends Ebola quarantine plan in court, cites WHO and international law

Health Cabinet Secretary Aden Duale has filed a detailed replying affidavit defending the ministry’s Ebola preparedness and quarantine measures, in a constitutional petition filed by Katiba Institute challenging the legality, scope, and constitutional basis of the government’s response framework to the regional outbreak.

In the affidavit, Duale urges the court to uphold the State’s preparedness strategy, stating that Kenya’s response to the Ebola outbreak in neighbouring countries is firmly grounded in international law, World Health Organization (WHO) guidance, and regional cooperation obligations under the East African Community framework.

He tells the court that the Ministry of Health is legally mandated to implement public health measures, including quarantine administration and disease surveillance, pursuant to Executive Order No. 1 of 2025, which assigns the ministry responsibility for all matters relating to public health, including Public Health and Quarantine Administration.

Duale confirms that the petitions before the court arise from the Ebola outbreak reported in the Democratic Republic of Congo (DRC) and Uganda, and that he swore the affidavit in opposition to the consolidated constitutional petitions challenging the government’s decision to have the quarantine facility established in the country.

He states that in formulating Kenya’s response, the ministry relied on expert technical guidance from the Director General for Health, who advised on the epidemiological characteristics of the outbreak, its regional spread, and the heightened risk of cross-border transmission into Kenya given population movement within the region.

The CS anchors Kenya’s legal and policy position on the International Health Regulations (IHR) 2005, which he describes as a binding instrument of international law establishing a global legal framework for the prevention, preparedness, and response to the international spread of disease.

He cites Article 2 of the Regulations, stating that the objective is “to prevent, prepare for, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risk.”

Duale further relies on Article 13 of the IHR, which recognizes the mandate of the World Health Organization to collaborate with State parties in responding to public health risks, including providing technical assistance, coordination, and deployment of expert teams during outbreaks.

He also cites Article 12 of the Regulations, which empowers the WHO Director-General to determine whether an outbreak constitutes a Public Health Emergency of International Concern (PHEIC), which he describes as an extraordinary event that may require coordinated international action across affected and at-risk countries.

According to the affidavit, the WHO Director-General on 16 May 2026 declared the Ebola outbreak in parts of the DRC and Uganda a Public Health Emergency of International Concern (PHEIC), thereby triggering enhanced international coordination and response obligations among Member States.

Duale further notes that the Africa Centres for Disease Control and Prevention (CDC) also classified the outbreak as a Public Health Emergency of Continental Security, underscoring the severity of the regional health threat.

On the nature of the disease, the CS relies on WHO scientific guidance, stating that Ebola is a rare and severe illness in humans, often fatal, caused by viruses in the Orthoebolavirus genus.

He explains that transmission occurs through direct contact with infected blood or bodily fluids, particularly when a person is symptomatic or after death from the disease.

He adds that individuals do not transmit Ebola before the onset of symptoms, and that the incubation period ranges between 2 and 21 days.

Due to its clinical presentation, he notes that early symptoms may resemble other infectious diseases, making early detection difficult without laboratory confirmation.

The affidavit further states that diagnosis of Ebola requires specialised laboratory testing, including RT-PCR and ELISA methods, which are used to confirm infection due to the similarity of early symptoms to other febrile illnesses.

Duale warns that the outbreak has already demonstrated severe impacts in the region, citing data indicating that the DRC had recorded over 1,000 suspected cases and more than 250 deaths, while Uganda had confirmed cases linked to cross-border transmission, with hundreds of contacts under active monitoring.

He further highlights that healthcare workers have been infected while treating patients, underscoring the occupational risks faced by frontline medical personnel in outbreak zones and the need for strengthened infection prevention and control measures.

The CS also invokes the East African Community Treaty, stating that Partner States are under a legal obligation to cooperate in the prevention, control, and management of communicable diseases that pose a regional threat to public health.

He maintains that Kenya’s preparedness measures including enhanced disease surveillance systems, strengthened laboratory capacity, infection prevention and control protocols, quarantine readiness, and border health screening are consistent with WHO temporary recommendations issued following the declaration of the PHEIC.

The government argues that the Ebola preparedness and quarantine framework is science-based, proportionate, and necessary to safeguard public health, prevent importation of the disease into Kenya, and protect the population from potential local transmission.

Katiba Institute and the Law Society of Kenya (LSK) are challenging the framework before the court, arguing that the establishment and operationalisation of Ebola quarantine measures raises constitutional concerns, including questions around legality, proportionality, and the protection of fundamental rights and freedoms.