INTRODUCTION

History repeats itself and the 1905 precedent set by the United States Supreme Court in Jacobson v Massachusetts on compulsory immunizations seeks to repeat itself. In a snapshot during the small pox pandemic, the US Supreme Court legitimized the government’s authority to reasonably infringe upon personal freedoms by requiring for compulsory vaccination against small pox.

Moving forward to recent times, countries and companies are pushing policies providing for compulsory vaccinations in the workplace. CNN for instance has fired three members of its staff for reporting to work despite being unvaccinated against covid-19. In Kenya, Joseph Kinyua, the head of public service issued a circular to all public servants directing that all government workers to receive at least one dose of the Covid-19 vaccine before 23rd August 2021 or face disciplinary action.

In light of the above, various legal issues arise and these are:

  1. What is the constitutionality of forced vaccinations in the Kenya and can the Government enforce disciplinary action against unvaccinated civil servants?
  2. Can companies develop and enforce policies pushing for compulsory vaccinations in the workplace?

 

WHAT IS THE CONSTITUTIONALITY OF FORCED VACCINATIONS IN THE KENYA?

The Constitution of Kenya, under article 32 provides that every person has the freedom of conscience, religion, thought, belief and opinion and they may not be denied access to any institution or employment because of the person’s belief or religion.

However, it is important to note that rights are not absolute and in the words of Madan CJ, there is need to balance individual rights vis a vis community rights. However, to provide for mandatory vaccinations, the government needs to create a legal instrument which must independently pass the test in Article 24 of the Constitution which provides for limitation of rights. In the absence of a legal instrument, enforcing compulsory vaccinations will be unconstitutional ab initio.

For compulsory vaccinations to be held constitutional, various legal questions will be posed in line with Article 24 of Constitution as read together with case laws such as the Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others [2020] eKLR and the Kosovo case of President of the Republic of Kosovo (Applicant)-Constitutional Review of the Decision No. [Government] 15/01, 23 March 2020. These questions are:

  1. Is the requirement for mandatory vaccination prescribed by law?
  2. Is the mandatory vaccination for a legitimate aim and is the purpose for the mandatory vaccination fulfilled?
  3. Is the mandatory vaccination requirement proportional and is it made only to the extent necessary?
  4. Is the mandatory vaccination necessary in an open and democratic society?

If the answer to the questions above are in the negative then compulsory vaccinations will be unconstitutional ab initio. The Rule of law and democracy as envisaged by Abraham Lincoln in the Gettysburg Address have to prevail and in determining the necessity of the vaccine in a democratic society, some of the questions that will be posed on this issue will be as follows:

  1. How many citizens have already been vaccinated?
  2. What are the reasons why citizens are adamant to get the vaccine and is there an alternative solution?

It’s important to note that in coming up with laws, regulations or directives on compulsory vaccinations, the government should remember that the people are supreme and the constitution is anchored on social values based on the rule of law, public participation and respect to the people. This has been upheld by the Kenyan Supreme Court in Joseph Kimani Gathungu vs. Attorney General & 5 Others [2010] eKLR and additionally, in the European Court of Human Rights in Özgür Gündem vs. Turkey, 16 March 2000, Application No. 23144/93.

 

CAN COMPANIES DEVELOP AND ENFORCE POLICIES PUSHING FOR COMPULSORY VACCINATIONS IN THE WORKPLACE?

According to the Black’s law dictionary, policies are the generic principles which guide the management of affairs. Policies ensure there is smooth and efficient practice in the office. The main question that is then posed is whether companies can develop and enforce compulsory vaccination policies.

The foremost consideration when assessing the validity of a policy is by checking its constitutionality. The test for this is similar to what has already been discussed above on the constitutionality of compulsory vaccination in the country. Additionally, companies will be guided by various statutes such as the Occupational Safety and Health Act and the Public Health Act. Thus, if the company compulsory vaccination policy is constitutional and validly in place, an Employer has the right to terminate the employment contract of an employee who violates the policy.

 

CONCLUSION

For the government to enforce compulsory vaccination, proper legislation has to be enacted to back the directive. In the absence of a legal instrument the act will be unconstitutional.

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact Charles Wamae or Caxstone Kigata vide charles@wamaeallen.com caxstone@wamaeallen.com

About the author

Managing Partner at Wamae & Allen

Charles is an experienced transactional advocate with over 17 years experience in the legal industry. He is the Managing Partner at Wamae and Allen, an Entrepreneur and a proponent of the Adaptability Quotient(AQ) theory.

Partner at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

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