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November 19, 2018

Your child’s right to good health

All children must be vaccinated against preventable diseases like Polio. Some religions do not allow their members to use medicine. Article 32 (2) of the Constitution provides that, Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance.

In some instances the practice instructs its followers to abstain from going to hospital or not to allow their children to take any form of medication. Rights are not absolute.

Article 24. (1) provides that, A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including–(a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The committee of experts must have realised how important,health is to a human being including a child. Article 43 (1) stipulates that, Every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services.

Article 53(2) is a child specific safeguard which provides that a child’s best interests are of paramount importance in every matter concerning the child.

One has to ask whether as a parent vaccinating your child against polio and such life threatening diseases amounts to a violation of this child's right or not. Does the right and freedom of worship allow a parent to take away the child's right to health and right to life?

Article 27(1) guarantees us that every person is equal before the law and has the right to equal protection and equal benefit of the law. This means that a parent and a child shall enjoy this guarantee.

The children and parents who practice the afore highlighted religions must not loose sight of the fact that Article 26 (1) of the Constitution provides that, Every person has the right to life. Without vaccines,then the child is exposed to a disease and eventually to loss of life.

Under The Public Health Act a parent can be imprisoned if they denied their children vaccines. We saw this last week in Nyahururu. Article 21(1) of The Constitution stipulates that, It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.

In discharging this duty and obligation towards the child, the State has come to the rescue of the children who are denied vaccines by the patents in the name of religion.

The State has flexed its muscle and vaccinated the vaccines on the children against their protesting parents as to ensure that these children enjoy their right to health and life.

The foregoing demonstrates how rights conflict within the family. All rights are important. The rights within the family are interrelated and interdependent. The rights have to compliment each other and they should not at any one time violate the rights of others.

The right of a parent as read with the best interest of the child principle tends to override the parents right to religion in delicate situations like these. The court has to uphold and promote the rights of the child whenever it is dealing with competing rights.

That means whenever limiting the rights of parents under the Public health Act it must at all times be read in the manner expected under Article 24. The Act must also be read alongside Section 7 (1) of Schedule 6 of The Constitution which provides that, All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

The vaccines against polio is a fundamental instrument and a tool to eradicate disability as we uphold Article 54 of The Constitution. Lets fight polio.

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