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Kenya’s Head of Public Service, Joseph Kinyua, has threatened to punish public servants who will remain unvaccinated against Covid-19 come the August 23, 2021, deadline.

Kinyua’s sanctions for non-compliance target security officers, teachers, and other core civil servants. The threatening circular referenced OP/CAB.1/12A got issued on August 5, 2021.

The circular by Joseph Kinyua, Head of Public Service.

It comes against the backdrop where Kenyan parliament is due to consider a motion to bar unvaccinated people or those without negative Covid certificates from certain public and private spaces. It remains unclear where the proposed restrictions would apply.

Inoculation must be voluntary after free and informed consent.

Kinyua’s order violates bodily autonomy. It amounts to an unconsented physical intrusion that equals torture, a human right abuse according to the principle of bodily integrity.[1]

The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment tames Kinyua’s move. Article 2 (3) says an order from a superior officer or a public authority may not be invoked as a justification for torture.[2] Government workers, therefore, have the right to make choices about their bodies.

Further, Article 7 of the International Covenant on Civil and Political Rights affirms no one can be subjected without his free consent to medical or scientific experimentation.[3] Kenya ratified this treaty on May 1, 1972; hence the government has a binding obligation to give effect to this right.

Critically, the Kenya Constitution protects human dignity in Article 28. This article that also applies to public servants stipulates that every person has inherent dignity and the right to that dignity respected and protected.

The United Nations Committee on Economic, Social and Cultural Rights (CESCR) foreshadowed the quagmire Kenyan civil servants are facing now. The CESCR predicted a situation where States will use public health as grounds for limiting the exercise of other fundamental rights. The CESCR general comment number 14 on the Right to the Highest Attainable Standard of Health (Art. 12), emphasized that the Covenant’s limitation clause is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States.

Such restrictions must be per the law, including international human rights standards, compatible with the nature of the rights protected by the Covenant, in the interest of legitimate aims pursued, and strictly necessary for promoting the general welfare in a democratic society.[4]

Critically, the Kenya Constitution protects human dignity in Article 28. This article that also applies to public servants stipulates that every person has inherent dignity and the right to that dignity respected and protected.

Uhuru’s administration has securitized the pandemic and uses it for political expediency. Some groups, especially those allied to the President, can gather in thousands while police suppress his adversaries in the guise of enforcing Covid-19 restrictions.

In an interview with Okoa Mombasa, Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) national chairman, Abidan Mwachi, said: “Government cannot force its workers to be vaccinated.”

“Decisions on a human body, who is of competent mind, rest on that individual. Anything to the contrary, especially coercion, is litigable under the law of thought.”[5]

According to CESCR, the right to be free from non-consensual treatment can only be restricted under specific conditions that respect the best practice and international standards.[6] In such a case, we require quite a balancing act.

Uhuru’s acts of defiance fuels vaccine hesitance

Kenya needs aggressive public education campaigns that reach the masses and enable them to make informed consensual choices on whether to be vaccinated or not. However, this is not reflected in the acts of defiance by Head of State, Uhuru Kenyatta, including other senior public office holders and politicians.

Illustratively, Uhuru’s activities have been inconsistent with the threat of the pandemic. He has held supper-spreader political events, including the Madaraka Day fete in Kisumu held on June 1, 2021. His actions have weakened an already feeble public education campaign and jutted a perception that the virus is either “unlethal” or “non-existent”.

Uhuru’s administration has securitized the pandemic and uses it for political expediency. Some groups, especially those allied to the President, can gather in thousands while police suppress his adversaries in the guise of enforcing Covid-19 restrictions.

Further, the securitization response to public health has augmented rogue behaviour by some police. People arrested breaching the regulations must buy their freedom to escape punitive action by the State. For instance, court fines disproportionately affect Kenyans in the lower social income status, who live under a dollar a day.

Kinyua’s strategy of resorting to repressive tools like forced inoculation is counterproductive. It results in mistrust and opposition to vaccination.

What should the government do?

Kinyua needs to encourage vaccine uptake and reaffirm preventive measures required by the World Health Organization (WHO).

The provision of health-related education and information is critical in encouraging vaccination. Participation of the population in health-related decision-making at the national and community levels should not be on the back burner.

The government must improve medical personnel’s working conditions and have enough well-trained health workers who enjoy good terms, including personal protective equipment.

What should the public do?

Every right has a duty. The public must adhere to the Covid-19 protocols and make informed consensual choices about vaccination.