Government in court over mandatory vaccination

As debate rages on whether Malawi should adopt mandatory Covid vaccination, the High Court has set February 3 2022 as the day it would hear the application which journalist Mundango Nyirenda and Centre for Development and Economic Development Initiatives (Cdedi) have made against the move.

Initially, Nyirenda and Cdedi made an ex-partes application, asking the court to stop the government— through the Presidential Taskforce on Covid— from going ahead with forced inoculation for Covid.

They also sought leave for judicial review of the government’s decision.

However, High Court Judge Kenyatta Nyirenda turned down the ex-partes application, opting for an inter-partes one on February 3 so that he can hear points raised by both sides.

In a notice, the High Court has notified the parties that “Application to commence Judicial Review for the interlocutory injunction to come by way of notice on 3rd February 2022 at 9 O’clock”.

Apart from taking aim at the Executive arm of the government, Nyirenda and Cdedi have also taken on Parliament, which they want to abandon plans to allow only those vaccinated against coronavirus on its premises.

The applicants’ lawyer Oscar Taulo confirmed the development.

“The injunction was not granted ex-partes but the application was given a date for both sides to be heard. We believe the court thought it wise to wait until it hears from both sides before making a decision after looking at the seriousness of the matter.

“The good practice is that, when matters are in court, both sides refrain from doing anything on the issues being contended,” he said.

The applicants also want the matter to be expedited.

Health Minister-cum- Presidential Taskforce on Covid co-Chairperson Khumbize Kandodo Chiponda announced recently that the government would start implementing mandatory Covid vaccination in January 2022.

However, Malawi Human Rights Commission (MHRC) described the government’s decision to introduce mandatory Covid vaccination for specific categories of workers as a violation of human rights.

In a statement, MHRC Chairperson Scader Louis indicated that measures introduced by the government had a direct impact on the enjoyment of human rights.

Louis said vaccination, like any other medical intervention, must be based on the recipient’s free and informed consent.

“Compulsory vaccination is an interference with the human right of bodily integrity, which is a part of the right to private life enshrined in the Universal Declaration of Human Rights.

“Ultimately, international law provides a strong indication that the right not to be subjected to medical treatment is an absolute right that cannot be limited. This ought to set a very high bar on any attempt to mandatory forms of medical treatment including vaccination,” the statement reads.

Centre for Human Rights and Rehabilitation Executive Director Michael Kaiyatsa said the government had to tread carefully on the issue of mandatory vaccination.

He said forcing people to get vaccinated was a violation of human rights.

“The new regulation is not good and the government must ensure that regulations they are making do not contravene constitutional provisions,” Kaiyatsa said.

However, Kandodo Chiponda, who is Presidential Taskforce on Covid co-Chairperson, told The Daily Times on Wednesday last week that the government would proceed with its decision, targeting public servants, frontline workers and those working in the social sector, including journalists.

She said any human right that people enjoy thrives on top of the right to life and that, as such, if people died due to Covid-related complications, there would be no human rights to be enjoyed.

Kandodo Chiponda said they, as government, were open to stakeholders’ inputs on the matter but that, as things stood, they would maintain mandatory vaccination for people to be protected.

“We are a government that listens to people; so, we are happy that the [issue of] mandatory vaccination has sparked debate and we, as government, welcome all views as long as they are there to save people’s lives,” she said.

On December 15 this year, the Presidential Taskforce on Covid announced that, as the coronavirus new variant of Omicron was spreading fast in the country, the government had taken drastic actions—among them making vaccination mandatory and moving the Covid alert to level 2, which entails strict enforcement of Covid preventative measures.

It indicated that, from January 2022, it would be mandatory for specific categories of people, which will include civil servants and healthcare workers, to receive Covid vaccines.

Despite indicating that the targeted categories of people would be announced in due course, Kandodo Chiponda hinted that civil servants, notably healthcare workers and those in the social sector including the journalists, were likely to be included.

“You [journalists] are at high risk; you meet different people every day; as such, you need to be protected. All journalists need to be vaccinated and that will be mandatory as well,” she said.

Minibus drivers, waiters, workers in the banking sector, immigration officers and road traffic officers were also described as key workers.

“We are not doing this to punish Malawians; we are doing this to protect people from this Covid pandemic,” she said.

At level 2, in-door gatherings have a maximum of 100 people while outdoor events, including football and music shows, have a maximum of 250 people effective Monday last week.

Bars and drinking joints are also required to close by 10pm.

Two weeks ago, Secretary for Labour Dickson Chunga warned employers against making Covid vaccination a precondition for awarding end-of-year bonuses to employees.

Chunga indicated that employers that would ignore the warning risked being prosecuted.

He said Section 5(1) of the Employment Act, as amended, prohibits discrimination of employees on the basis of their status (vaccination status inclusive).

“On the basis of our national labour laws, making Covid vaccination an eligibility criterion for bonus is an infringement on rights of employees and, in view of this, all employers are hereby advised against linking, in any way, Covid vaccination status to the bonus payable to employees,” he said in a statement.