This is prompted by a challenging piece on the Elephant website (Oduor, 'Covid-19 Vaccine Mandates in the Light of Public Health Ethics' https://tinyurl.com/elevaccethics).
I should declare my own position. I welcomed the possibility of being vaccinated and have been fortunate enough to have two jabs and a booster. And, while I fully accept that there are people with genuine doubts about and objections to the whole idea of being vaccinated, or being vaccinated yet, I am rather disturbed by those who say “I want it to be tested more before I am prepared to take it.” How do they think it will be tested? On people who are somehow less valuable to society than they are?
Let me say that Mr Oduor does not fall into that class as far as I can tell. He relies on a combination of ethical arguments and the Constitution, and says “vaccine mandates are instances of state overreach, as they violate human dignity, human agency and human rights, thereby eroding the very foundation of democratic society. If government can determine what goes into my body, what remains of my personal liberty?” By “vaccine mandate” he means rules requiring people to be vaccinated or suffer certain consequences.
OTHER COUNTRIES
What a Kenyan court decides in a Kenyan case would depend mainly on Kenyan circumstances, of course. But other countries’ experience is not totally irrelevant. Other countries may have tackled similar issues including the state of knowledge about the virus and the effectiveness of vaccines and other measures.
Secondly, the Constitution says that a limitation on human rights may be justified (constitutional) if it is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". What other democratic countries consider is a valid purpose for limiting rights and a valid way to limit them may be worth looking at.
There have been a few cases in other countries specifically on Covid-19 vaccines, including Brazil and the USA, upholding them. And over the years there have been a good number of cases on other vaccines – for mandatory vaccination is not something new (some childhood vaccinations often being required by law).
Late last year various law professors (not probably secret agents for Big Pharma) were anticipating that courts like the European Court of Human Rights would say the laws requiring vaccines were valid. And believed this could be a suitable response.
STEP BY STEP
Does requiring vaccination by imposing sanctions on those who refuse violate human rights? The Constitution protects a lot of rights but does not say, “You have the right to do anything you like.”
Being excluded from supermarkets? Not a violation of the right to food if you can get it elsewhere. Deprived of public services? That is not a right of itself. Maybe if you could not get an ID card or a passport (freedom of movement or maybe chance to work — or vote).
And a right (though not a 'human right') of any citizen to have these documents. Denied access to church services – violation of the right to practise religion, and freedom of association. And denied access to the SGR or alternative routes – denial of freedom of movement.
How about non-discrimination (Article 27)? Being unvaccinated might just be 'health status' which cannot be used to discriminate. You might argue it is age discrimination — children are not required to be vaccinated.
Courts may accept that some unlisted characteristic should not be used to discriminate. But Kenyan courts often refuse to accept that something they think is perfectly fair is not actually discrimination. And in one case they suggested you can be discriminated against because of some choice you have made. This I am not sure about — religion is a choice but you can’t be discriminated against because of it.
The government might argue that it is not violating the rights. All people have to do to avoid these consequences is to get vaccinated — for free. I am not sure if a court would accept that.
How about being compelled to have something in your body? Arguments on how exactly this is a violation of rights would have to be brought to the court. Mr Oduor suggests this an attack on dignity (Article 28). Is it to be treated as though government seized you and forcibly jabbed you?
LIMIT BY LAW
The Constitution says that only law can limit rights validly. I am not sure precisely what legal backing there is for some of these measures. Orders from even the most exalted state officers are not enough unless the law clearly gives them power to make those orders.
How important is the purpose and will what government insists on achieve the purpose?
This is where things get really difficult. If government wants to argue in court that the purpose justifies the vaccine rule, they must show what the purpose is. One of the problems governments will have is that research is constantly moving the goalposts.
I part company a bit with Mr Oduor. He suggests that vaccination is useless to prevent spread of the disease. A good deal of research suggests that it does indeed help prevent it — though not 100 percent. True, some research is on variants of the disease that are now rarer. But governments cannot wait, surely, until they have peer reviewed research on the latest variant? They would wait forever.
He also omits all mention of a very important objective of vaccination: to keep people out of hospital. It has become clear that many other conditions are not being treated because staff are not a—ilable, hospitals can’t take patients or patients are scared to go to hospital.
And medical staff have been grossly overworked, sickened, have died, and sometimes quit the service. People who get ill, as a result of their own decision or not, do not affect only themselves.
Neither his opinion nor mine counts for anything in a court case. Courts have a difficult task – if government’s assumptions are proved to be wrong by later research, how do you judge their decisions, especially when government has the responsibility of convincing the court?
Is the limit on rights justified and proportional to the purpose?
A court needs to look at the impact on rights – how serious is it? And particularly could the same objective have been achieved in a way that limited rights less? If, for example, wearing masks would limit spread of the disease just as well.
Again, particularly hard questions arise over the changing state of knowledge. If government relies on information from WHO to justify measures like compulsory vaccination, is this necessarily enough?
Does a government have to prove that it could not have produced a similar level of vaccination by education, publicity and persuasion? Or is the truth that government aimed to use the threat of consequences of not being vaccinated as a way of persuading – one might say bullying – people into getting vaccinated?
Could this ever be justified? Suppose they had tried all reasonable persuasion? Can they show they have tried all reasonable persuasion? Is the cost of a massive publicity campaign relevant?
On the intrusion into one’s body aspect: how relevant is the (very small) risk of serious side-effects?
And particularly in Kenya (and other countries short of vaccine doses), can a compulsory regime be proportionate in relation to people who, quite reasonably, did not know about the vaccine, whose home was too far realistically to get to a vaccination centre, or who for whom there were no doses available? Surely not.
The Constitution tries to compel a reasoned and reasonable approach to decisions about whether rights have been violated. The courts, and lawyers, have a difficult task even with this framework. They can’t decide on the basis of hindsight, or prejudice, or emotion.
And the Constitution says that when applying rights like health, education, food, water and housing, a court should not say government was wrong merely because the court thinks it would have reached a different conclusion.
This principle should surely be applied here, also.
