Public health laws and Constitutional rights

The Constitution of Zimbabwe is the supreme law of the land. Section 44 of provides that the State and every person, including juristic persons, and every institution and agency of the government at every level must respect, protect, promote and fulfil the rights and freedoms set out in chapter 4 of the Constitution. Some of the rights that have been invoked in militating against forced vaccination are;

• The right to human dignity (Section 51)
• Right not to be treated in an unfairly discriminatory manner (section 56 (3)
• Freedom of conscience (Section 60)

The rights provides for in chapter 4 can only be limited in terms of section 86 (2), that is, through a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society. The question therefore becomes, is there such law of general application presently specifically mandating people to get vaccinated. The answer is no. It is therefore impossible to limit the rights without that law.

Another important provision is section 35 of the Public Health Act which provides that no health service shall be provided to a person without their informed consent. Consent to treatment in this regard entails that a person must give his or her permission before they receive any type of medical treatment, test or examination. Clearly, vaccination can be considered to be a health service which falls under the Act. A clear interpretation of this provision informs that despite the availability of the vaccine, a person still needs to consent to take it.

The Constitution and Labour Laws

Under labour laws, an employee is supposed to provide a service as long as the employment contract subsists. The labour laws and Labour Act are subservient to the Constitution – this includes all employment contracts. Section 2 of the Constitution provides that any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. The question at hand is more constitutional than it is confined to labour laws.

Limitation of Constitutional rights – Section 86 of the Constitution and mandatory vaccination

Constitutional rights are not absolute. In terms of the Constitution (section 86), rights can be limited firstly through a law of general application i.e. legislation, common law and customary law that is impersonal, but applies equally to all and is not arbitrary in its application. Secondly, the limitation of constitutional rights should be for a purpose that is reasonable in a democratic society. What this means is that the state may impose mandatory vaccination laws. The affirmation of the authority for the state being able to compel vaccination goes all the way back to a U.S. Supreme Court case in 1905 called Jacobson v. Massachusetts. That case arose in the midst of an outbreak of smallpox in Cambridge, Massachusetts, in 1902.

Pending or contemplated litigation on the issue

Some have to sought to argue that the need to have employees vaccinated amounts to a proposal to vary employment contracts. Following this logic, it has been argued that if an employer proposes a variation of an employment contract and the employee resists, such can be a ground for termination. The underlying point is that constitutional arguments be at the core of the issue. Trade Unions have already shown their preparedness to approach the courts on this issue. The Courts are yet to make a determination on this point.

What can employers do in the meantime?

In as much as the courts have not yet pronounced themselves on the “no jab, no job” principle, the employer retains the duty to ensure safe working conditions at the work place. Conditions which necessarily do not lead to dismissal can be imposed such as mandating the unvaccinated to work from home and to stop using the company premises. One interesting question is whether the employer can dismiss where the nature of the job is such that the employee cannot work from home.