HomeOpinion & AnalysisCOVID-19 forced vaccination unconstitutional

COVID-19 forced vaccination unconstitutional

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Esau Mandipa

RECENTLY, there have been circulating news that civil servants and employees in the private sector were being forced to take the COVID-19 vaccine or lose their jobs if they refuse to comply. In some instance, unvaccinated church members have been barred from attending churches services.

The Public Service Commission is on record advising that unvaccinated civil servants should not report for work and would be deemed to be on leave. On his part, the Health and Child Care minister has promulgated Statutory Instrument 234 of 2021 Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (No. 2) (Amendment) Order, 2021 (No. 35) which stipulates that every member of the Public Service shall be fully vaccinated by October 15, 2021.

The Statutory Instrument in question further states that unvaccinated members of the Public Service shall be barred from the workplace after October 15, 2021 and shall not be paid their salaries and benefits when so barred.

In addition, unvaccinated members of the Public Service shall be subject to disciplinary proceedings on the basis of failure to obey a lawful instruction after October 15, 2021.

This comes as a surprise because forced vaccination is unconstitutional by its nature. To start with, Zimbabwe follows a constitutional democracy. This means that the Constitution is the defining document of anything that can be done or cannot be done in the country. The Constitution actually dictates the road that Zimbabwe should follow.

In terms of section 2 of the Constitution, we find what is known as supremacy of the Constitution. This means that the Constitution is the supreme law and any law, practice, custom or conduct that is inconsistent with the Constitution shall be invalid. As citizens, we need to ask ourselves whether or not COVID-19 forced vaccinations are constitutional. The answer is no because of the following constitutional provisions:

It is agreed that in terms of section 76, every citizen and permanent resident has the right to have access to basic healthcare services. What needs to be known is that access to basic healthcare services should not be forced. In terms of section 52, every person has a right to bodily and psychological integrity, which include the right not to be subjected to medical or scientific experiments without their consent. Of course, I do not possess any medical expertise but from a human rights perspective, it is wrong to force people to take COVID-19 vaccines without proof that such vaccines have passed all the trial stages. It is also wrong to force people to take the vaccines given that some of the fully vaccinated people are dying of the pandemic in question, thus buttressing the position that such vaccines qualify to be medical experiments.

Section 60 provides for freedom of conscience, meaning freedom of thought, opinion, religion or belief. In essence, every person has the freedom to practise and propagate their religion or beliefs. If we take as an example members of some of the apostolic churches who do not subscribe to modern medicines, it becomes unconstitutional to force the same to be vaccinated. Such will be a violation of their right to religion and is tantamount to forcing them to act contrary to their religious beliefs. There have been news recently of a Member of Parliament who was barred from entering Parliament because he was unvaccinated. The Member of Parliament is on record saying that he did not take the vaccine because of his religious beliefs.

It is actually torture and inhumane treatment to have people take vaccines without their free and informed consent. Section 53 provides for the freedom from torture or cruel, inhumane or degrading treatment or punishment.

The decision, especially by the Health and Child Care ministry to force all members of the public service to take COVID-19 vaccines is, therefore, wrong and it infringes the right to administrative justice.

In terms of section 68, all persons have a right to conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

Declaring that unvaccinated members of the public service should stop reporting for duty from October 15, 2021, is an unlawful and irrational administrative decision. It actually infringes other rights especially the right of an employee not to have his/her contract of employment unlawfully terminated.

It is also an unfair labour practice to deny an employee salary or drag them to a disciplinary hearing simply because they chose not to be vaccinated. Section 65 provides for labour rights especially the right to fair labour practices and standards.

The public service employees, who chose not to be vaccinated, should actually be heard before they are barred from reporting for work and receiving their salaries.

Why should there be a deadline of October 15, 2021, without affording the employees an opportunity to be heard as to why they chose not to be vaccinated.

It should be known that the defining factors in life are independence, choice and control.

Why should people who choose not to be vaccinated, be forced to take the vaccine? Those people are independent and their decisions should be respected.

Of course, some human rights enshrined in the Constitution can be limited in terms of section 86.

However, it should be noted that the limitation must be fair, reasonable, necessary and justifiable in a democratic society based on openness, justice and human dignity, among other factors. Mandatory medical vaccination has no place in a democratic society based on openness, whatever the expected benefits may be.

Rather than forcing people to undergo vaccination, more effort, time and resources should be channelled towards awareness campaigns about the benefits of COVID-19 vaccination so that the citizenry make informed decisions.

Esau Mandipa is a lawyer practising with Mutatu & Mandipa Legal Practice in Gweru, and a law lecturer at Faculty of Law, Midlands State University. He can be contacted at 0773 429 047 or mandipae@staff.msu.ac.zw

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