Petition 329

The tension between public health and individual rights raises key questions in the face of public health crises such as tuberculosis (TB) and Ebola: What are the circumstances that warrant the obligatory detention of individuals with an infectious disease as a measure of protecting the general public?1 What are the implications for the protection of privacy while managing and controlling the spread of diseases such as HIV? What must be done to obtain informed consent for research and epidemiological studies that benefit public health?2 Recent handling of TB and Ebola patients in West Africa captures the tensions inherent in the attempt to balance public health and individual rights.3 In this Perspective, we outline our experiences in handling Petition 329 of 2014, a constitutional petition filed in the High Court of Kenya in 2010, which sought to challenge the arrest and detention of two TB patients for interrupting their TB treatment.4 The two patients who were the first and second petitioners in the case, Daniel Ng’etich and Patrick Kipng’etich Kirui, were both detained in prison for failing to adhere to courses of TB medication. The Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) was the third petitioner in the case; the respondents were the cabinet secretary in Kenya’s Ministry of Health, the public health officer of Nandi County, and the Kenyan attorney general. The petition challenged an eight-month custodial sentence handed down by the Resident Magistrate’s Court in a criminal case initiated by the public health officer.5 Temporary orders to allow the release of the petitioners were secured through Petition 329. The judge who oversaw the petition, Judge P.M. Mwilu, held that: