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There's no policy that makes vaccination of Kenyans mandatory

OPINION
By Desmond Odhiambo | September 9th 2021
A health care worker prepare a dose of the AstraZeneca vaccine [Boniface Okendo, Standard]

The government aims to vaccinate 10 million people by December 2021, and 26 million by the end of 2022.

In a momentous leap towards this ambition, it announced in 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. 

The decision sparked public debate, forcing the president to clarify that there would be no mandatory vaccination but urged essential service providers to get the vaccine. All things considered, 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 the head of the Public Service. It was in no way ratified or put forward as a policy. 

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.

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 myriad 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 the infection and reinfection rates that are filling up hospital beds across the country.

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 Kenyan 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 discriminatory and a violation of a few fundamental rights as outlined in the Constitution.

The road to economic recovery is paved with obstacles, including the obligation to uphold the rights of Kenyan citizens – but which rights? The answer is not a simple one and it will, undoubtedly, shape employment laws for future generations. 

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