Mombasa-based lawyer Mbarak Hamid has challenged Ministry of Health rules requiring proof of Covid-19 vaccination to get in-person government services and enter hotels, bars and restaurants starting on December 21.
In his petition in the High Court in Mombasa, Mr Hamid argues that the directives cannot be enforced until citizens offer their views on them at public forums.
“Instead of using sanctions and threats, the government should undertake information campaigns to encourage people to get vaccinated,” he argues.
Through lawyer Willis Oluga, the petitioner says the government needs to carry out substantial publicity through the media to encourage people to get vaccinated.
“To show that the government is not serious on publicity campaigns and sensitisation, the Ministry of Health set aside only 2.1 per cent of its budget for advocacy, communication and community mobilization initiatives,” the petition says.
Mr Hamid wants the court to declare the directives unconstitutional, illegal, null and void and of no legal effect.
The petitioner also says that by allowing only fully vaccinated people to access government and private services such as the right to board matatus and enter certain places, the rules are discriminatory.
Though he fully supports government efforts to ensure that people are vaccinated against Covid-19, he says, they must be undertaken within permissible constitutional and legal parameters.
He also argues that the Health Cabinet secretary has no mandate and jurisdiction to direct state organs and government and private providers to deny services to people who are not fully vaccinated.
“While the petitioner does not challenge and has no intention of challenging the ongoing vaccination drive, the directives were published under the erroneous notion that the country is in a position to achieve 100 per cent vaccination by December 21, which is not possible,”
Mr Hamid says.
The directives, he says, are unreasonable and unjustified because officials did not specify how they would be enforced.
“Other than the directives touching on the transport ministry sector which the CS directed the Ministry of Transport and undisclosed stakeholders to coordinate, the respondents did not bother to specify how the rest of the directives would be enforced and by whom,” argues the petitioner.
Having failed to specify those mechanisms, he argues, officials have left the enforcement to unscrupulous government officers who are likely to abuse and misuse the directives to harass innocent people.
The petitioner also argues that there is no evidence that restricting the movement of people who are not fully vaccinated is effective in reducing Covid-19 infections.
Mr Hamid wants a permanent injunction to restrain officials from enforcing the directives published on November 21.
Mr Hamid has sued the Health Cabinet secretary, Ministry of Health, National Emergency Response Committee on Covid-19 and the Attorney-General.
The case will be heard on December 15.