The government aims to vaccinate 10 million people by December 2021 and 26 million by the end of 2022. In what can only be called a momentous leap towards this ambition, it announced in early August that all civil servants were to receive a dose of the Covid-19 vaccine or face disciplinary action. The grounds for this decision lie in the low uptake of the vaccine, particularly in sectors like education and security services.
It was a decision that sparked national public debate, forcing the President to clarify that there would be no mandatory vaccination but urging those in essential services to receive the vaccine. These events bring poignant questions to the fore, many of them relating to legislation. With all things being considered, it would seem that there are two opposing opinions, each founded in legitimate law.
The first is that civil servants who do not get vaccinated disregard the shared responsibility to ensure their own health and safety while at the workplace. Proponents of this sentiment point to The Occupational Safety and Health Act of 2007.
In contrast, much of the public outcry against the government directive was rooted in the fact that mandatory vaccinations for civil servants violated the constitutional right to ‘freedom of conscience, religion, thought, belief and opinion’. These are the two predominant arguments being put forward by advocates for either cause – the dilemma is multi-faceted.
There are a few preliminary considerations to be made when considering this matter. The first is that the decision to make vaccinations for civil servants mandatory existed in the form of a confidential circular, issued to members of the public service by Joseph Kinyua, the head of the nation’s public service.
What the public needs to be acutely aware of is that the decision was in no way ratified or put forward as a policy. It was no more than a managerial directive – one that was not intended for public awareness.
For now, civil servants can be encouraged to get vaccinated but mandatory policy to this end simply does not exist. Ratifying such policy would be a lengthy and hotly contested issue involving both the public and Parliament. The directive, however, has provided ground for interesting debate and discussion on issues around human rights.
Are such directives necessary? Many would argue in the affirmative, given that like in the case of other African nations, Kenya is experiencing hesitancy in certain quarters towards the vaccinations. And here again, there are considerations to be made. The impact of fake news, for example, around the legitimacy of the virus and the alleged side effects of the vaccine, cannot be underestimated.
The government has taken decided steps to curb the mass panic that fake news has caused, but at this point, those steps amount to little more than damage control. There is also a religious component to be considered. The hesitancy of some Kenyans to take the vaccine is based on religious grounds and again, we cannot infringe on the human right to freedom of religion.
Another consideration to be made is the fact that we are navigating uncharted territory. Currently, certain vaccinations for children are mandatory. But this does not equate to precedent on the matter. US precedent in the form of compulsory immunisations against the smallpox pandemic was set in 1905. But that’s as far as precedent extends in terms of the law we can refer back to for guidance on this issue.
There is no precedent for vaccinating people in the workplace for health and safety reasons. We are treading new ground and we need to tread lightly.
Undoubtedly, and for a myriad of reasons, employers in certain sectors are keen to reinstate working in-office, and so the private sector will take its lead from the public sector. Corporate Kenya will look to government for guidance on this matter, which is why the leaked directive caused such a ripple effect on civil society.
What might be on the horizon are mandates for employees in vital sectors to receive vaccinations. For example, healthcare workers could be required in future to be vaccinated to curb infection and reinfection rates. The hospitality and tourism industries have also been brought to a standstill by the onset of the pandemic – the vaccination of employees in this sector could alleviate the situation and help the economy back on its feet.
What we also need to consider is that although there simply are no mandatory vaccination policies in place anywhere in Kenya, this does not exclude the possibility of discrimination within the workplace based on whether employees have been vaccinated.
This, for now, is where the main legal challenge exists. Hiring based on one’s vaccination status would be considered discrimination and a violation of a few fundamental rights as outlined in the Constitution. Discrimination of this nature can and will be challenged legally.
The road to economic recovery is paved with many obstacles, including our moral obligation to uphold the rights of Kenyan citizens – but which rights? The answer is not a simple one and it is an answer that will undoubtedly shape employment law for forthcoming generations.
Advocate of the High Court of Kenya
