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A constitutional duty: The case for mandatory 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.

The government of South Africa will be derelict in its constitutional duty to protect the public from a health pandemic should it not impose mandatory vaccination.

The following statement from an article published by the American Bar Association (ABA) written in the US context makes a good introduction to this opinion, and also rings true in South Africa: “While there is a lot of sound and fury these days about mandatory vaccination against the Covid-19 virus, it should ultimately signify nothing. Mandatory vaccination is 100 percent constitutional and has been for over a century.”

When you have the proportion of positive Covid-19 cases rising from 2% to 9% in just under a week then the writing is on the wall that the pandemic is still the greatest threat to public health and mandatory vaccination is a must.

Yet, some people believe that the pandemic is just a figment of the imagination of public health alarmists despite evidence to the contrary. Testimony from one of the country’s leading infectious diseases specialists, Professor Salim Abdool Karim, tells us that hospital numbers continue to show the unvaccinated are at higher risk.

Since last Sunday, when President Cyril Ramaphosa addressed the nation on the new Covid-19 variant, the famed Omicron, and the anti-African position taken by so-called developed countries to close their borders to people from southern Africa, debates have been raging about how to deal with Covid-19.

The source of the debates is the revelation by the president that the government has set up a task team to consider “making vaccination mandatory for specific activities and locations”. Business for South Africa and some scientists and experts have proposed that places such as hospitals, grocery stores, certain government services, large-scale events, travel in buses, taxis and aeroplanes, indoor establishments such as restaurants and taverns, and places of worship be subjected to vaccine mandates or allow access only to people who are vaccinated. Generally, businesses and other groups are warming up to the thorny issue of mandatory vaccination.

Characteristic of a society that is in denial, already some are up in arms with the announcement by Ramaphosa that a mandatory vaccination policy is being considered. Anti-vaccination proponents have as their main argument that nobody should be coerced to vaccinate and that mandatory vaccination policies are anti-human rights.

In my view, our circumstances as a country and hard facts demystify what seems to be a popular argument by those opposed to vaccination: that people are self-interested or altruistic enough to come forward for vaccination without any government mandates. As noted by the Democratic Alliance health spokesperson, “our vaccine uptake has been rather poor, with only 35% of South Africans fully vaccinated”. This explains why as a country we are yet to reach herd immunity.

It is now a race against time to save lives. My advice to the assembled government task team is that there is no time to be indecisive in the face of opposition to mandatory vaccination policy. Measures meant to nudge persons to get vaccinated, including mandatory vaccination policies, are commonplace. Nobody is denying that policies that mandate an action or behaviour interfere with individual rights and freedoms.

However, it should be a no-brainer for the task team that it is common practice for governments to mandate certain actions or types of behaviour for the sole purpose of protecting the wellbeing of individuals or communities. South Africa’s Covid-19 mandate policy can be legally and ethically justified as a measure meant for the protection of the health and wellbeing of the public.

It is high time that the debate shifts from whether mandatory vaccination policy is necessary and constitutional, to the questions:

  • What should the policy entail?
  • What form should it take and how soon must it be implemented?
  • Whether, as a middle ground, the government must establish a quasi-mandatory vaccination policy, directive vaccination approach, or sector-based mandates?

I am indebted to the World Health Organization policy brief entitled Covid-19 and Mandatory Vaccination: Ethical Considerations and Caveats, which answers the question, what does “mandatory vaccination” entail? The relevant part reads:

  1. While interfering with individual liberty does not in itself make a policy intervention unjustified, such policies raise several ethical considerations and concerns and should be justified by advancing another valuable social goal, like protecting public health.
  2. Typically, mandatory vaccination policies permit a limited number of exceptions recognized by legitimate authorities (eg, medical contraindications).
  3. Despite its name, “mandatory vaccination” is not truly compulsory, ie, force or threat of criminal sanction are not used in cases of non-compliance…. Still, “mandatory vaccination” policies limit individual choice in non-trivial ways by making vaccination a condition of, for example, attending school or working in particular industries or settings, like health care. Such policies are not uncommon.

A report by the Nuffield Council on Bioethics, which is an independent body that considers and reports on ethical issues in biology and medicine, stated the following about what should be considered when establishing coercion and mandatory vaccination policies that can be justified:

“In general, public health policies should use the least intrusive means to achieve the required public health benefit. Directive vaccination approaches that go further than simply providing information and encouragement to take up the vaccine may, however, be justified based on minimising risks of harm to others or protecting the health of children and other vulnerable people. When assessing whether more directive policies are acceptable, the following factors should be taken into account: the risks associated with the vaccination and with the disease itself, and the seriousness of the threat of the disease to the population…

“We identified two circumstances in which quasi-mandatory vaccination measures are more likely to be justified. First, for highly contagious and serious diseases, for example with characteristics similar to smallpox. Second, for disease eradication if the disease is serious and if eradication is within reach.”

Needless to say that currently, science confirms that the risks associated with the Covid-19 vaccination are far less than the risks of the pandemic itself and the seriousness of the threat it presents to the entire South African population.

The government of South Africa will be derelict in its constitutional duty to protect the public from a health pandemic should it not impose mandatory vaccination. Coming to the public with a policy that targets only healthcare personnel because of their contact with patients or infective material from patients, to the exclusion of others such as university students and staff in congregate settings, will not be enough.

Admittedly, healthcare workers are at a higher risk of exposure to vaccine-preventable diseases and possible transmission to patients, co-workers, and their families. But, preventing transmission of Covid-19 to all other congregate settings is equally important. For this reason, I support without reservation the establishment of a general mandatory vaccination policy in South Africa.

Of course, one expects some of the legal challenges that workplaces, organisations and institutions will encounter regarding mandatory vaccinations. Anti-mandatory vaccination proponents will allege that the government’s policy violates both procedural and substantive due process rights. Others will argue, as previously stated, that the Bill of Rights guarantees the rights to choice, bodily integrity and equal protection. These arguments have been made many times without consideration of public health needs. Much time is wasted on people who are against vaccination without offering better solutions to the problem.

With mandatory vaccination, it will be within our reach as a society to control Covid-19 infection while at the same time allowing the social, economic and political aspects of our lives to run as normally as possible. Of course, there will never be ordinary normality after this pandemic. Countries will have to ponder on the future and how to move forward.

As Ramaphosa told the United Nations General Assembly in September: “We need to prepare now for future pandemics and work with greater determination towards the goal of universal health coverage.”

In conclusion, and borrowing again from the ABA, South Africa’s mandatory vaccination under Covid-19 will violate no recognised constitutional rights.

“[T]he liberty secured by the Constitution… to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organised society could not exist with safety to its members. A society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy,” said Justice Harlan in the US’s famous mandatory vaccination case of Jacobson v. Commonwealth of Massachusetts (1905). DM

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