The World Health Organisation (WHO) has insisted on countries adopting a population-wide containment strategy for Covid-19. In March when countries were deciding on what type of response to take to the pandemic, the WHO repeatedly said that mitigation measures will not do. Mitigation being measures to contain the virus within cluster outbreaks, as we are now doing in many cities in India. The Director General of the WHO, Tedros Adhanom, repeatedly insisted that there must be an "all-of-society" and "all-of-government" approach "built around a comprehensive strategy to prevent infections" with containment as the "central pillar".
But throughout the Covid-saga there has been a blind spot on the part of public health authorities about the disproportionate effect of disease containment measures on the poor and marginalised. The degree of surveillance and police presence to which slums in Delhi and Mumbai were subjected was much greater than for better off parts of the city. In South Africa, videos of brutal police action in poor, black neighbourhoods surfaced on social media within days of lockdown. People pointed out how the police would beat up lockdown violators in black neighbourhoods, while negotiating with people in white ones. Similar discrimination was observed between police enforcement of lockdown in the poor and mostly black neighbourhoods on the outskirts of Paris than the posh ones in the heart of the city. In Africa, as in India, quarantine and other mandatory measures fell harder on the poor. United Nations Human Rights officials noted that "those who cannot pay bribes, poor people, are taken to mandatory quarantine centres". In India, as in other countries, there were many instances of religious and ethnic minorities being targeted and stigmatised as "spreaders" of Covid.
Some countries like Bangladesh, and many in Africa, went to the extremes of deploying their armies to enforce disease containment measures. In Bangladesh, Human Rights Watch claimed that civilians, including academics and Opposition party workers, had been arrested for posting social media messages on Covid-19 that the Bangladeshi Government called "rumours" and "propaganda". In South Africa there were many cases of people being killed by security forces for "backyarding": where two or three men would get together to socialise in backyards of their own homes. In Nigeria, by the middle of April, eighteen people had been killed by armed forces and police in the enforcement of lockdown. More than the total number of people dead of Covid-19 in Nigeria by that time. In Kenya, a 13-year old boy was killed by a bullet fired in the air by the police to impose Covid-19 curfew.
Even while the public was being pushed by epidemiologists into accepting far-reaching containment measures, some rights organisations, like UNAIDS, tried to warn the world of its dangers. On March 20th , UNAIDS published a document called "Rights in the time of COVID-19" that starts by picking up on Tedros Adhanom's repeated exhortation for countries to respond to the Covid-19 pandemic with "containment as the central pillar". It says: "Countries are being requested to take a comprehensive approach…with containment as the central pillar. However, as in all acute epidemics, especially where casual person-to-person transmission occurs, there is a need to ensure that the response is grounded firmly in human rights." Drawing from its experience of years fighting AIDS, UNAIDS then sets out step-by-step the inherent injustice of this approach, predicting with devastating accuracy the wrongs of each type that came to pass under the reign of WHO-prescribed Covid-19 containment measures: the propensity of government agencies to over-react, forgetting the fundamental demand of constitutional law that state action must be proportionate; the tendency in times of fear and panic for countries to resort to politically driven, stigmatizing and punitive measures; the disproportionate effect of disease containment measures on already vulnerable communities; and the tendency for stigma to be attached to those contracting the disease.
Similar concerns are raised by the WHO in a 2007 document called "Ethical considerations in developing a public health response to pandemic influenza" in which it says that surveillance, isolation, quarantine and social-distancing measures be undertaken in a way that respects ethical norms. This document goes on to state that as such measures place a burden on individual liberties, their use should be "carefully circumscribed" and that case isolation and quarantine should "be voluntary to the greatest extent possible" and conducted in safe, habitable and humane conditions. Another WHO publication from 2016, "Guidance for Managing Ethical Issues in Infectious Disease Outbreaks" reiterates the immediate risk of discrimination and heightening of prejudices in an infectious disease outbreak.
These documents also speak of the need to build legal recourse into disease containment measures.
The current leadership at the WHO failed to give due consideration to this work, even though some of it was by the WHO itself, while exhorting countries to take disease containment as the "central pillar" of their Covid response. In matters of health, surely it should be the person and their care and dignity that should be the central pillar of any response. This is the moment for lawyers and judges to step in to foster the development of a human rights-based code of conduct for state agencies in the implementation of disease containment measures.
Views are personal only.
(Author is a Practising Lawyer)