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South African universities heading in the right direction by mandating Covid-19 vaccination

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Arguing against mandatory vaccinations using human rights as a point of reference has been largely divisive and disingenuous. Not all arguments hold water. Does our Constitution, read properly, allow anyone as a right to go into a crowded lecture hall or workplace unmasked, unvaccinated, untested amid pandemics? The answer is no.

I must state at the outset that my views expressed below are personal and do not represent the views, position and/or practice of my university. South African universities have entered the contested discourse of whether to mandate the Covid-19 vaccine for the safe return of students and staff to campuses or not. I have previously argued that “mandatory vaccination of staff and students at universities (Omphemetse Sibanda | Should SA varsities consider mandatory Covid-19 vaccine policies?) will allow safe repatriation of students back to campuses and must be encouraged as an important mitigating measure to be considered by South African universities.”

Further, I borrowed from Judge Frank H Easterbrook in his ruling for the United States Appeals Court for the 7th Circuit, and opined that it is up to each South African university “to decide what is necessary to keep other students safe in a congregate setting”.

Some universities such as Stellenbosch University (SU), University of the Free State (UFS), and the University of Cape Town (UCT) have already entered the uncharted waters of vaccine mandates for students and staff. UCT, for example, has gone a step further having discussed the issue of mandatory vaccination proposal for the safe return of students to campuses at Senate level and the proposal was subsequently approved in-principle by UCT Council, to take effect as from 1 January 2022. 

This, as we learnt, was not an easy discussion. A statement by the UCT College of Fellows read in part as follows: “The College of Fellows supports calls for a requirement that all staff and students of UCT provide acceptable proof of having been vaccinated against SARS-CoV-2, before engaging in in-person group activities. Such face-to-face group interaction is an essential component of the academic project allowing the university to achieve its full potential. Given the likelihood of the pandemic continuing into 2022, a responsible return to normal academic activity will only be possible if all staff and students are vaccinated.” 

The fellows further stated that “concerns that fellow citizens have about vaccination should be addressed with respect and empathy and informed by the best scientific evidence regarding SARS-CoV-2 vaccination”.

How we address concerns about vaccination as universities is critical. What is often lacking in the vaccine mandates discussions, in my view, is not discussing and making clear the nature of the mandates. Vaccine mandates fall into two categories: (1) the “hard” mandate category where students or staff cannot attend classes or be at the workplace unless they are fully vaccinated; and (2) the “soft” mandates category where people are nudged to get vaccinated. 

Further, vaccine discussion debates fail to highlight that there are many legal implications and other considerations to mull over before deciding to mandate getting a Covid-19 vaccine. In particular, the question of accommodations such as conscientious objections, religious and ethical accommodations, and not discriminating against a certain group of people such as those people with disabilities is not given the prominence it deserves. 

In brief, the question will always come to whether a university has created a legally compliant policy on vaccine mandates and whether the policy addresses topics such as time off for vaccination appointments and a well-articulated process for requesting accommodation for those students and staff who may be eligible. These questions are critical as they relate to the public relations impact of mandating vaccinations on universities.

Public trust must also feature prominently as universities mull over mandates, and everyone on each side of the stick must feel appreciated.  Alienating those against mandates and vaccination through our messaging can only help to derail the debate. For instance, staff and students not vaccinated must not be told that the vaccine mandate is to protect those vaccinated. The message simply is that the vaccination is to ensure that everyone is safe from any health hazard relating to Covid-19.

As various universities hold discussions on vaccine mandates, care must be taken that the discussions do not appear to impute blame or seek to shame those hesitant to vaccinate. The mandate decisions by universities must be intended to keep the entire campus population safe.

The discussion around vaccine mandates must put a spotlight on the fact that we are battling a highly transmissible and stealthy pathogen, and that everyone returning to campus must help fight the pandemic. This is where communication divisions of universities must play an active role with information that will help increase vaccine uptake among students and staff by providing unadulterated information about Covid-19 vaccination aimed at promoting vaccine trust and confidence.

Most importantly, universities must appreciate that vaccine mandate policies or resolutions are in themselves not enough. Universities need to establish supportive policies and practices to make the implementation of these mandates easy and not disruptive to the academic project.

The elephant in the room and major obstacle to vaccine mandates is human rights, unfortunately. Arguing against mandatory vaccinations using human rights as a point of reference has been largely divisive and disingenuous. For instance, some arguments fail to recognise and acknowledge the presence of positive asymptomatic Covid-19 cases that can put the health and life of everyone on campus or resumption of on-site operations at risk. 

Common in the human rights-based approach of justifications for refusing vaccination has been people citing bodily integrity, personal liberty and freedom. Not all arguments hold water. Does our Constitution, read properly, allow anyone as a right to go into a crowded lecture hall or workplace unmasked, unvaccinated, untested amid pandemics? The answer is no.

Are vaccine mandates unfairly and unethically discriminatory? The answer is no! You can only talk of wrong or unfair discrimination when such discrimination is based on unconstitutional and on irrational reasons. Let it not be forgotten that there is also a public health exception to some of the rights cited as justifications against vaccinations. One expects university communities to be intelligent enough to know about these exceptions.

The reality is that Covid-19 variants to date and their Pimpernel-like existence remain a threat to unvaccinated populations, in particular students on university campuses around the country. Admittedly individual universities have taken different approaches to implementing vaccination as a precondition for returning to normal, but delaying this discussion further or being opposed to efforts to nudge students and staff to vaccinate serves only to deny students access to education in the context of residential universities.

As a membership organisation representing South Africa’s universities, Universities South Africa (USAf), formerly known as Higher Education South Africa (HESA), must take a decisive leadership role concerning vaccine mandates. It must live up to its organisational mandate of influencing and contributing to policy positions regarding higher education. Vaccine mandate policies at universities are such policies needing USAf’s positioning and influencing.  

Further, the moment is here for USAf to “facilitate effective dialogue among universities, government, business, Parliament and other stakeholders on issues affecting universities” as per its mandate. USAf must take the bull by its horns and steer to finality – before the start of the academic year 2022 – the issue of vaccine mandates and safe return to campus. This should not be left only to the Ministry of Higher Education and Training.

It is a good start when the university Senates and Councils voted in favour of vaccine mandates, which does not necessarily mean that these trailblazing institutions will respond with mandates. We must also be mindful of the disadvantages that uncoordinated and differentiated approaches to vaccine mandates will bring to different universities. Yes, universities are independent of each other, but their operations are linked at the hip.

The issue of mandates is not only about jabs. Operationally, it has several ramifications. For instance, we may in the future have to deal with the issue of notional hours spent by a student on a particular programme and the inter-university transfer of academic credits between credits obtained fully online without proctoring tools and those obtained in mixed-mode or in-person settings with regard to certain modules.

We cannot perpetually be in debate mode when only two months are left to start another new academic year 2022. While as a country we are bogged down on the endless debate of “my rights, my body, your rights, your decision”, some universities around the world are seriously taking the issue of mandatory vaccination to heart in preparation for the academic year 2022.

A cursory look at University World News points to the issue of vaccination mandates among institutions of higher learning globally to be topical, exciting, controversial and emotional: “We are going to look at the feedback in terms of the vaccine mandate for the halls of residences. We are beginning to talk to our unions, academic board and student association … We need to go through a very careful process; this is not something we can just do because other countries are doing it”, said Te Herenga Waka Victoria University of Wellington Vice-Chancellor Grant Guilford.

Some students are reported to have opted to defer their studies until the pandemic is dealt with and vaccination is no longer a requirement to return to on-campus face-to-face activities. Such an unflinching standpoint against vaccination is something we do not want to see in a country with 4.4 million adults illiterate, and “Of this group, over two-thirds are below the age of 60, while about a third are below the age of 50” according to the study by the Department of Higher Education and Training. If many students were to take such a position to defer their studies because they are against vaccination the current illiteracy rate across provinces will worsen.

If the objections against vaccination for safe return to campus persists, the next platform for debates must be for the courts to address the conundrum once and for all. Universities have a constitutional responsibility to bring back students to campuses safely and to resume normal operations. Courts in other jurisdictions have already had the opportunity to rule on universities’ vaccine mandates, so far with their Covid-19 vaccination mandate policies not blocked by courts.

The most recent example was when Indiana University saw a unanimous 7th US Circuit Court of Appeals panel rule in favour of its vaccine mandate, which has health and religious accommodations or exceptions, saying that the university did not violate any constitutional right.

I would like to quote from an article in University World News, citing   Dimitri Drekonja, an associate professor of medicine at the University of Minnesota Twin Cities from an open letter signed by more than 500 people calling on the university to reconsider its anti-mandates position: “I think when you see all your peer institutions go in one direction and you’re not, at some point it makes you reconsider.” 

Predictably, the universities that resolve the issue of vaccine mandates as soon as possible for the safe return of students to campuses will gain the biggest in terms of new entrants in 2022, with the 2021 matriculants who need in-class tertiary education experience seeking to be admitted by vaccine mandate universities. Elsewhere around the country, some matriculants are making a hard decision to get vaccinated and enjoy the complete benefit of on-campus teaching and learning at those institutions that would have successfully implemented vaccine mandates by the start of the academic year 2022.

These matriculants have seen and experienced their brothers and sisters at universities having lives turned upside down: 2020 first-year undergraduate students having only three months experience of campus life, and those in three-year degrees facing the possibility of graduating without any lecture hall exposure; students sent home to study under some difficult and non-conducive environments; and postgraduate empirical research students failing to complete their studies within the maximum study duration because they could not be allowed to collect data due to Covid-19.  DM

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