Vaccines should be made mandatory, but where people have either a personal or religious objection, they should be compelled to produce a negative Covid-19 test once or twice a week if they work in high-risk settings.

This is the view of Prof Salim Abdool Karim, who joined Maverick Citizen editor Mark Heywood and Justice Edwin Cameron in a discussion on the place of human rights in the Covid-19 pandemic. Heywood said the pandemic was also increasingly becoming one of inequality and human rights abuses.

Abdool Karim said that when one looks at the matter of vaccinations, there are issues of personal choice and other externalities. 

“When someone gets Covid-19, they are not only themselves at risk of illness, they are putting at risk everyone who is travelling with them on the taxi or bus, their work colleagues and family members — even before they know that they are sick. 

“There is a huge externality that goes beyond personal choice in Covid-19. We have several settings that carry a particular risk. Where I believe vaccines need to be made mandatory… that does not mean that for religious or personal reasons a person cannot say [they] do not want to be vaccinated. We have to allow for those personal choices. And we have a solution. For those who do not want to be vaccinated, they will have to provide a negative Covid-19 test on a regular basis — weekly or twice weekly — so that we know they are not exposing others to the virus. There is an alternative. It is more costly. But there is an alternative.

“Healthcare is what I know best,” said Abdool Karim. “Within the healthcare setting, you are interacting with the most vulnerable in society… we cannot be placing them at risk. That is just too high a risk… It has to be mandatory. In the US, it is now mandatory in many, many healthcare settings.”

He said questions will be asked if people are forced to do something they do not want to do, and insist on their right to bodily integrity. 

“I think the answer to that is that your right to bodily integrity is not absolute. It has to be viewed in relation to the challenges it poses to highly vulnerable people. In this particular instance, if you choose not to be vaccinated, either find a low-risk job or you come with a negative test once a week. I don’t believe the government should make it compulsory. I believe it is a sector or institutional decision. 

“There are two key criteria: individuals who work in congregate settings and are working in close proximity to each other. For example, a waiter in a restaurant is putting everybody at very high risk because people are not wearing masks and they are in a congregate setting.”

Abdool Karim also mentioned prison staff and teachers as examples. 

“If you take people who attend to the public in the Home Affairs office, they are interacting directly with the public. They need to be vaccinated. If you make a list of sectors that meet that type of criteria, you will have a good justification for mandatory vaccinations,” he said.

Justice Cameron said he agreed with Abdool Karim.

“The law is a teacher and a norm. It embodies a standard. When we say let’s make vaccines compulsory, we are not talking about people going from house to house with arm clamps… We are talking about creating a legal norm that says: you must. 

“There are hardcore anti-vaxxers, many of whom are very similar to hardcore Aids denialists. Then there are the vaccine-hesitant. The norm should say to them, you should be vaccinated. What the consequences are should be modulated. You can impose a fine. You can impose limited movement on people… or you can say, well, you are free not to be vaccinated, but then you have to, at your own cost, be tested twice a week or every three days at your own cost. There are various ways. 

“Of course this will have a resource differential impact. You can’t allow the rich people to get away with not being vaccinated. We have to differentiate … We are going to use the law as a medium of instruction, of guidance and encouragement.”

Cameron said this was similar to early efforts to get people to wear seatbelts.

“I would go further than congregate settings. I would say there should be a norm. I agree that compulsory vaccination mandates would be constitutional.”

He said a requirement that the unvaccinated should provide regular negative Covid-19 tests, at their own cost, did however discriminate against those who did not have the means. “You have to be careful when introducing resource-differentiating penalties in the law,” he said. 

“Let me just say, we need to ensure that we don’t place obstacles in the path of Covid-19-positive people’s access to medical care. It saves their lives and reduces the risk of transmitting the virus. But there is a good case to be made for individuals who are not vaccinated. Covid-19 is very costly to treat, especially for those who go all the way to ICU. You are basically eating up the money that could (for instance) be used to vaccinate a whole city with the measles vaccine,” Abdool Karim said. 

“I think there is a case to be made that those who can afford [the test] should be made to cover part of the costs.” 

Explaining the difference between mandatory testing for HIV and for Covid-19, Cameron said that mandatory HIV testing had been designed to “weed out people like me”.

He said the objective was not public health oriented. “The objective was to stigmatise, to ostracise, to deprive, to disprivilege. Here, the objective is entirely public health. The objective is to say, we have to protect each other. I need to know that you have been vaccinated. That you have done the best you can not only to protect yourself because of our limited public health resources, but to protect your students in your class, to protect your fellow employees… to protect those in congregate settings.”

Abdool Karim said, to add an additional dimension, mandatory testing and vaccinations are critical elements in the battle against Covid-19, especially in preventing the development of new variants of the virus.

“The future of the pandemic lies in the creation of new variants and in our ability to identify new variants, and to look for them, we must test.

“Every person who is not vaccinated runs an increased risk of creating new variants. It is about the whole globe. The original strain of the coronavirus came into one person and spread to the whole world. You are not an island,” Abdool Karim said.

Cameron said South Africans have learnt “many grievous lessons about the abuse of public power, about the misuse of force… terrible lessons about vaccine inequity and medicine availability,” during the Covid-19 pandemic.

“We have to take those forward. The profound lessons we learnt from Aids have been shown to be valid in the Covid epidemic. It is right and correct to use a respectful approach to containment of an epidemic, to limit infection and contagion. Of course that is because of human dignity, human autonomy and human individuality… It is right to respect people when you are trying to say that you are trying to save them from disease, contagion and death. The second reason is that it works so much better. This we learnt, very grievously, but we learnt it and we applied it in South Africa. 

“A second dimension is that we should have a deep respect for resource deprivation in the epidemic… The human rights approaches on both those levels work much better than the opposite approach, which is coercion, inequity, injustice, division… inequality is deeply counter-productive,” Cameron said.

He said that if he had been asked to advise the government at the start of the epidemic, he would “have told the government to be careful of using the big stick”. 

“Generally, towards the public, I would have said keep your big stick and handcuffs away. Use the resources to train the soldiers you are sending into the resource-deprived areas, the townships and the rural areas, to educate the soldiers on how to tell people how best to protect themselves and others. 

“It sounds corny, but it could in fact have worked. We would have done much better. You ask if it could have made a big difference. I am not actually sure. This epidemic has torn through us in ways we are finding completely unpredictable.”

Cameron said he did not think it was too late to turn things around. Using the example of the current ARV programme in the country, he said it was a good example of how South Africa can turn a dire situation around. 

Abdool Karim said: “In no other epidemic — and I have been involved in many epidemics — has the epidemic really been born in the belly of human rights as HIV. HIV from its very start was about human rights. It was about people who are vulnerable. Right from the beginning, HIV and human rights were joined at the hip. We had no solutions. We knew so little. We didn’t even know that it was caused by a virus. 

“When we think back to the elements of what we were trying to deal with in Covid-19… Covid has several characteristics that make it so different. Perhaps the most important one I will touch on here is speed. Here is the fundamental conflict: Speed is of the essence. How do you go with speed but at the same time ensure that you protect people’s rights? I believe that we didn’t always get it right. 

“For me, one of the very early issues that we grappled with, and I wasn’t involved in the decision so I am not pointing fingers at anyone, is that we didn’t really know what we were dealing with. All we had to work with… and hindsight is problematic… but at the time we knew about people dying in Italy, trying to get into a hospital. We saw how patients were dying in New York. We just saw how this disease was causing mayhem. And so the actions that were taken were quite substantial. 

“The government mobilised 70,000 troops. That is a lot of soldiers walking around our communities… We could have done things differently. We have to find a way… and that has been a lesson to us… to do it differently next time,” said Abdool Karim.

Cameron said the Aids activists in the 1980s and 1990s revolutionised the approach to public health.

“They revolutionised what we expect from the government when our lives are at risk. Angry, principled, well-directed, thoughtful, focused, outcome-based, direct action changed what we expect from doctors, from the pharmaceutical companies. 

“What is happening now with the Johnson & Johnson vaccines manufactured in Gqeberha but taken to other countries… It is a human rights outrage. We know that we should be outraged. Those issues of equity and access and medicine affordability were put on the table by queer activists and their allies in the 1980s and the 1990s,” Cameron said. DM/MC