Are Vaccine Mandates Constitutional?

“THE RIGHT TO choose what can and cannot be done to one’s body . . . is an inalienable human right.”

This is what the Namibian Supreme Court stated in a 2015 case involving a mother whose life was endangered when she refused a blood transfusion.

Debates about Covid-19 vaccination have been raging around the nation, despite clear statements from both the Namibian government and the World Health Organisation (WHO) that the vaccines in use in Namibia are generally safe and effective.

The Namibian government has indicated that it is not at this stage contemplating any legislation that would force anyone to be vaccinated against Covid-19.

The refusal to be vaccinated, however, may still have consequences.

Covid-19 ‘vaccine mandates’ are being considered or imposed by some private employers in Namibia.

In theory, they could be imposed by public or private entities for activities such as attendance at schools and entry to restaurants or events.

Around the world, vaccine mandates of various sorts are being introduced.

Some argue that vaccine mandates are both constitutional and ethical, on the grounds that their minimal interference with personal liberty is justified by the need to protect public health.

Others argue that vaccine mandates may be counterproductive by leading to even more vaccine hesitancy, or that less drastic approaches, such as intensified public education or incentive schemes, should be followed.

The Namibian Constitution protects the right to personal liberty, the right to human dignity, and the right to carry out any occupation, trade, or business.

These rights would arguably be restricted by a vaccine mandate for employees.

The key question is whether the interference with these rights by a vaccine mandate imposed by individual employers to protect the health of their employees would be a justifiable limitation of those rights.

Namibia’s Labour Act gives employers a duty to protect the health of their workers and any members of the public who come into contact with the workplace.

Would a vaccine mandate for employees be a reasonable way to carry out that duty?

No Namibian court has yet considered this question.

There are pending court cases about vaccine mandates in many jurisdictions around the world, making this a developing area of law.

What do we currently know?

Questions about the permissibility of requiring vaccinations for contagious diseases arose long before Covid-19 hit the world.

In 1905, the United States (US) supreme court ruled that a law requiring all members of the public to be vaccinated against smallpox was constitutionally permissible.

It held that the US constitution’s protection of personal liberty does not mean an absolute right for every person to act as they please at all times and in all circumstances.

This was also the view of a US district court after eight students recently sued a university that required all students and employees to be vaccinated against Covid-19 before returning to campus.

The court upheld the rule, noting that the vaccination does not only protect the vaccinated, but also those who come into contact with them.

It also emphasised that the university rule did not force anyone to be vaccinated. Any student who does not want to get vaccinated is free to attend another university.

In Europe, the European Court of Human Rights also considered the question of whether vaccine mandates are compatible with the right to respect for private life protected by Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms before the era of Covid-19.

The court found that a Czech law requiring certain vaccinations was a justifiable interference with the right to private life, because the law’s objective was to protect the health of the people who receive the vaccinations, as well as those who are vulnerable to disease because they cannot be vaccinated for some medical reason.

More recently, the French government issued Covid-19 regulations that require a ‘health pass’ with proof of vaccination status to enter some public places.

The French Constitutional Council has approved this approach as being constitutional.

Similarly, the Brazilian supreme court has held that individual rights do not render public health measures invalid if these measures promote the constitutionally protected right to health.

However, the court clarified that compulsory vaccination is not the same as forced vaccination.

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