We have seen it all. From arguments against Covid-19 restrictions as unconstitutional and paternalistic to the global corruption that was associated with the distribution of personal protective equipment (PPE).

We have also heard prominent jurists and judges across many jurisdictions talking about the Covid-19 issues. Notable for me, as a legal scholar, is the rather unusual critique of the Covid-19 lockdowns by the US Supreme Court Justice Samuel A Alito Jr in a reported speech to a conservative legal group, drawing a rebuke from other judges. And Alito Jr might be compromising his opportunity to sit on the Bench when lockdown-related cases come to the Supreme Court.   

Similarly, South Africa’s own Chief Justice, Mogoeng Mogoeng, was rebuked for his “Satanic Covid-19 vaccines” comments. Like Alito Jr’s speech, Mogoeng’s could be categorised as “conservative justice speech”. Others may brand the two justices’ speeches as “injudicious”.

Mogoeng’s comments could undermine the public’s faith in the safety and efficacy of Covid-19 vaccines. 

“I think the position that he holds, as the head of the judiciary and as a very influential person in South Africa, it’s an important dynamic of that. I just don’t think it’s particularly wise or responsible for those kinds of remarks to be creating a kind of ambiguity about vaccines,” reportedly said Chris Oxtoby, a senior researcher at the Democratic Governance and Rights Unit.

Covid-19 vaccines and their distribution, long-term planning and distribution together with other related health measures during pandemics have always been key towards ending people’s suffering. Unfortunately, not all countries had in place good plans to arrest the spread of Covid-19, other than the socially, psychologically and economically devastating lockdowns. 

While there is talk in some countries of digitising the process for vaccination, including considering digital immunity passports, little progress has been made in others. 

Some countries have resorted to emergency-use authorisation of vaccines, which could be challenged on the basis of their safety and efficacy. Of course, emergency-use authorisation may further fuel the Covid-19 vaccine hesitancy reported in the US, France and Britain, with some taking a view that such vaccines are products of truncated processes which have compromised the safety and efficacy that comes from lengthy trials.   

Even scientific evidence that vaccines distributed under emergency authorisation regimes are safe may not be sufficient to sway opponents of vaccination. This may be true in many African countries, for example, where the successful use of untested vaccines and medicines may not be common knowledge to many people. Vaccine hesitancy may be fuelled by the ranting and whinging of armchair epidemiologists who have zero subject matter expertise.

In South Africa, the government is facing mounting criticism for its handling of the procurement of Covid-19 vaccines. A group calling itself South African Eminent Scientists sharply bemoaned on this platform our lack of foresight in securing vaccines early, as in other developed countries – that is, to “produce a transparent and accelerated vaccine acquisition strategy”, a derelict act of the government which “will visit on us the consequences of the greatest man-made failure to protect the population since the Aids pandemic”.  

Here one may refer to as an example of a prudent action the 17 June 2020 presentation by the European Commission of an EU Strategy for Covid-19 Vaccines to accelerate the development, manufacturing and deployment of vaccines against Covid-19. The strategy acknowledged the urgency to secure vaccines and encouraged advance purchase agreements (APAs) via the Emergency Support Instrument with individual vaccine producers on behalf of member states. 

This exemplary action afforded member states the right to buy a specified number of vaccine doses with the concomitant duty to support producers with the upfront costs of producing such vaccines. Most of the African Union members were sleeping at the time and some still have their hands in the PPE cookie jar. 

It is indisputable that since South Africa was gripped by Covid-19, the country acted and responded like the poorest nations on the planet – poor in its preparedness for pandemics, and poor in its strategic thinking and communications. And rich in leaders and public officials with reckless behaviours and attitudes towards Covid-19 prevention, rich in corruption and maladministration with regard to PPE procurement.  

Questions have been raised whether the members of the South African government are pro-vaccine or whether they agree with the “satanic vaccine” comments, which the Chief Justice has defended as not meaning he is anti-vaccine. Even the about-turn by Health Minister Zweli Mkhize that vaccines may be available sooner than expressed by the president has not managed to calm nerves. Daily Maverick has labelled such assurances as “disturbingly hollow”.

No matter how much we criticise the government for its Covid-19 vaccine handling, there will always be controversy around vaccine distribution – be it political, moral, ethical, legal or constitutional. The availability and distribution of Covid-19 vaccines will generate many talking points. Below are four of those talking points, considered from a legal perspective.

Recipient prioritisation and streamlining the vaccination process 

From a political point of view, the issue of streamlining the vaccine distribution process will be a hot potato and some may use it to gain campaign advantage for the next election.  

South Africa’s borders are overwhelmed in trying to determine if those entering the country have the necessary Covid-19 test. Soon it will have to be determined if individuals coming to South Africa have been vaccinated against Covid-19. This will be a big ask from politically unstable and impoverished countries like Zimbabwe, whose citizens look up to South Africa as its possible saviour from Covid-19.

Further, it may be both a political and constitutional dilemma to determine who should get the vaccine first. Should it be South African citizens, permanent residents, South African taxpayers or anyone within the borders of South Africa – whether documented or not? Even if there may be good reasons to prioritise South African citizens and permanent residents, our courts will surely be inundated with cases of the government’s alleged unconstitutional, discriminatory and/or xenophobic practices. 

Who within the borders of South Africa is deserving of the first opportunity to get a Covid-19 vaccination? One should remember that section 27(1)(a) of the Constitution on healthcare, food, water and social security states that: “Everyone has the right to have access to­ healthcare services.”

Mandatory Covid-19 vaccinations

Back to the distrust of vaccines. Will it be illegal for the government to force everyone to be vaccinated? Legal practitioners must be smiling at the prospects of being in and out of court with money from clients rolling in, because the distribution of vaccines is bound to engender litigation. But, our practitioners will know that the Constitution does not disallow the judiciary from taking into account foreign jurisprudence when deciding matters before them. 

Elsewhere, the legal precedent for mandatory vaccinations has been set, dating back to the 1905 US Supreme Court case of Jacobs v Massachusetts. This case arose from an outbreak of smallpox in Cambridge, Massachusetts, in 1902. Cambridge introduced an ordinance requiring all adults to be vaccinated or revaccinated against smallpox. Those who did not get vaccinated faced a fine of $5. 

“The rights of the individual may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations as the safety of the general public may demand,” said the court in Jacobs v Massachusetts. As the case was lost in Jacobs v Massachusetts, it is unlikely that any attempt to challenge mandatory vaccination in South Africa will see the light of day. 

The government of South Africa has public health police powers, and it has, under the Constitution, the authority to enact reasonable regulations to protect public health, public safety and the common good. Notable is that section 7(2) of the Constitution makes it obligatory for the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. This is the legal language for a permissible state action, which in my view President Cyril Ramaphosa must think about introducing by the time the vaccines are available for distribution. Mandatory vaccination can help the government of Ramaphosa achieve widespread vaccination. 

Vaccination can take place in different ways to avoid costly exercises and processes. For instance, those queuing for government social grants can be mandated to also take the vaccine during that payday. This way there can be better control and records of who has been vaccinated. Enrollment at schools and universities may provide a perfect and controlled opportunity to vaccinate children and young people, many of whom are involved in Covid-risky activities. The 5c-sized scars on my shoulders remind me of the efforts that the apartheid government put into inoculating learners against smallpox and other diseases. The system seemed to have worked well because it provided a controlled environment to carry out the vaccination and no school-going child was left behind. 

Surely, the same system must work in the light of the fact that though we are fussing about access to Covid-19 vaccines we are yet to hear about a system for Covid-19 vaccinations. Are we going to have cards distributed to people with information about which vaccine they received and when they are due for their second dose? Or are we going to rely on digital immunity passports? Your guess is as good as mine.

Workplace inoculation policies

On a different, and perhaps controversial note, private employers in South Africa may also mandate vaccination for individuals remaining at work or securing work. Workplaces are Covid-19 transmission hotspots, which may justify such a demand for vaccination by private employers. 

I am indebted to an article published in December by Cliffe, Dekker and Hofmeyr Attorneys on employers and mandatory inoculation. The article makes reference to section 12(2) of the Constitution, which provides that: “Everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body.” It also correctly notes that such a right is not absolute.  

According to Cliffe, Dekker and Hofmeyr, the “gist behind mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe working environment”. Private workplace vaccination policies will not come without any resistance. 

As said by Cliffe, Dekker and Hofmeyr, “When considering whether to implement a mandatory vaccination policy, employers must have regard to their individual workplaces and access whether such a policy is, in fact, necessary taking into account, inter alia, the following factors: (i) the viability of continued remote work; (ii) the number of vulnerable employees in the workplace; (iii) the effectiveness of additional PPE where necessary; (iv) temporary alternative placements; (v) the employee’s exposure to the public and (vi) the number of employees with religious and/or medical grounds for objection.”

Navigating intellectual property rights claims

Amid all the frustration and anger against the government for its failure to secure vaccines early, one should not forget that medicines, as well as the processes required to produce them, are protected as patents under the Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips) of the World Trade Organisation (WTO). Protections are also found in other intellectual property protections arrangements, both nationally, as determined by each jurisdiction, and internationally. 

In particular, Trips requires countries to enforce national legislation that recognises and enforces pharmaceutical patents. The reality is that the patent regimen is vulnerable to abuse, and those holding patents may leverage their intellectual property rights (IPRs) in these patents to get more money from governments – particularly when governments need access to such medicines for the treatment of serious conditions such as Covid-19. The WTO allows public, non-commercial (government) use of patents in some cases. The relevant provision may be used during public emergency situations such as pandemics to protect public health and to promote access to medicines for all.

With the clear exceptions and permissive provisions in the WTO jurisprudence to override IPRs, governments must proceed with caution to secure the vaccines from their holders. The South African government’s negotiations with pharmaceutical companies to access the necessary Covid-19 vaccine supply is thus understandable, though embarrassingly belated.  

Our slow-thinking government should have entered into APAs to have Africa- or South Africa-specific vaccines developed, licensed and manufactured. The government is late in entering into these bilateral agreements, which normally should be to secure priority access to vaccine and manufacturing capacity, and will now have to compete with many interests. We must not be surprised when some of these agreements come at a much higher price than the one we paid trying to save the bottomless pit called South African Airways. 

One is yet to understand the reasons for the delay. Now procurement of these vaccines may be difficult, and South Africans may have no choice but to die while waiting for the vaccine to arrive. The only defence I can offer for our hapless government’s Covid-19 vaccine strategy is that perhaps there was a need to wait, otherwise we could have been burdened with candidate vaccines with no demonstrable evidence of safety and efficacy.

In conclusion, it is déjà vu. Just like millions of South Africans suffered from the government procrastination in providing antiretroviral medicine to people with HIV/Aids, so the Covid-19 vaccine fallout could have dire consequences. DM