Kenya’s Constitution, promulgated on 27 August 2010, establishes a constitutional democracy. It adopts a presidential system of government, completed by a strict exterior separation of powers of the Legislature, Executive, and Judiciary. This scheme provides for a near-total separation of personnel, and a clear separation of functions.
Functions related to healthcare are divided between two levels. The National Government is in charge of the formulation of health policy and the management of national referral health facilities. Alternatively, county governments provide county health services which include, among others, county health facilities and pharmacies, ambulance services, and the promotion of primary healthcare.
Emergency powers reside in the Executive, particularly the President and the relevant members of Cabinet. Emergency powers relating to public health may be exercised at the constitutional or statutory levels – depending on the context. Throughout the Covid-19 pandemic, the Kenyan Government has opted to deploy statutory measures, and avoided the constitutional framework - perhaps to eschew the stern safeguards which the Constitution establishes. Instead, the Government has opted to use the Public Health Act (PHA) and Public Order Act (POA) mainly as the basis for the measures to contain the Covid-19 pandemic. Under the PHA, once the Cabinet Secretary responsible for Health (CS Health) declares any disease ‘a formidable epidemic disease’ they acquire the power to make rules to curb its transmission. Besides the PHA, the Government has also relied on the enormous emergency powers it wields under the POA. The POA entrusts the Inspector General of Police, the provincial administration and the Cabinet Secretary responsible for administration (CS Interior) with wide powers to impose community-wide restrictions.