Health CAS should know the law is not a mere suggestion

Health CAS Dr Mercy Mwangangi at Nairobi's Panafric Hotel, July 2021.  [Courtesy]

No doubt, one of the greatest question of our times is that of personal rights versus public safety.  And nowhere is this clearer than in recent times when the Government has trammelled the rights of citizens under the guise of preventing the spread of Covid-19.

Kenyans have been beaten, maimed and in some instances, killed for contravening draconian curfews. And still, the charade continues, if recent pronouncements by Ministry of Health functionaries are anything to go by.

A statement attributed to the CS Health called for the barring of those unvaccinated against Covid-19 from accessing both public and private services. Some citizens went to the High Court and got an order prohibiting the enforcement of the CS’s directive. But a Chief Administrative Secretary in the same ministry took to national TV and appeared to repudiate the court order. She insisted on listing public and private places prohibited to unvaccinated persons.

The CS denies the existence of vaccine mandates. He is categorical that no Kenyan will be forced to take up covid vaccines against their will. Yet the pronouncements of his CAS negate his assurances. By cutting off Kenyans from essential public services, their net effect is to railroad them into the desperate uptake of the jab.

Questions arise. Is the CAS aware that there is a court order in place? Is she aware that less than a quarter of the country’s population is vaccinated? Does she know that her pronouncements have been taken as a mandatory government directive and some malls and businesses have now illegally barred both unvaccinated tenants and shoppers? Does she know that such loose pronouncements may cause irreparable harm through job losses and the collapse of businesses of the unvaccinated?

There is a reason courts of law exist.  In the contest between perceived public safety and personal rights and liberties, only the law is the trusted neutral arbiter. Indeed, as our national anthem suggests, when citizens are in danger of being overrun by an overbearing, overreaching Executive, justice becomes our shield and defender.

The Jubilee administration has demonstrated a strange proclivity to disregarding court orders. It has, in some instances, treated them like mere suggestions that are either taken up or ignored at the discretion of those they are directed at. Court orders must be obeyed by all citizens. Nobody is exempt! Disobeying court orders is impunity! It cannot be tolerated or celebrated.

 Perhaps the CAS, in disregarding Justice Mrima’s orders, has an inflated sense of self. Perhaps malls and other businesses that have illegally turned away unvaccinated tenants and shoppers have put too much stock in directives that have no legal basis. In any case, the Ministry of Health has not proved, as the CS has suggested, that unvaccinated citizens are a threat to the vaccinated. 

In fact, science has proved that vaccines do not stop one from getting infected. They do not stop one from transmitting covid. Their value lies in the alleged reduction of severity of illness. Even then, the efficacy of the vaccine wanes after a relatively short time requiring a booster shot, a second booster shot, a third, ad infinitum.

The war against Covid-19 can only be won by touching the hearts and minds of Kenyans. Cockamamie edicts that have no basis in medicine and in law are bound to elicit resentment that is counterintuitive. Perhaps the Ministry of Health would do well to heed the advice of Kenyans who say, “dear Government of Kenya, you do not need to protect your workers from unvaccinated people.

Only a person who is sick with covid, whether vaccinated or not, transmits it to others!” Better still, the Ministry should go to court and apply for any orders it considers adverse to be set aside. After all, the law is not a suggestion!

This column is exactly four years old this week. Thank you for your faithful readership. Happy New Year!