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Vaccine mandate issue heads for the Constitutional Court in key test of public health rights

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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.

Claims are made daily by casual observers, political commentators and legal scholars alike on the hotly debated issue of vaccine mandates. It is long overdue for the Constitutional Court to weigh in on the matter.

With the ongoing Covid-19 pandemic, the protection of human rights faces one of its greatest tests as a serious bulwark of public health rights. The contested terrain continues to be about mandatory vaccinations. The highest court in the land, the Constitutional Court, is about to be seized with the opportunity to provide leadership on the constitutionality of mandatory vaccination policies.

Several interest groups, including unions and human rights bodies, have announced plans to approach the court for clarity on the matter.

Interestingly, the state seems to be disinterested in joining the battle before the apex court, according to some reports. However, the state should be acutely aware of its constitutional duty in the debate that is raging about key constitutional rights which might arguably be constrained by a vaccine mandate; namely, the right to bodily integrity (Section 12); the right to practice any profession, or carry on any occupation, trade or business (Section 22); and the inherent dignity and the right of everyone to have their dignity respected and protected (Section 10).

There can be no better authority to address the mandatory vaccination issue than the Constitutional Court.

In Fose v Minister of Safety and Security the court held that:

“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced.”

Without pre-empting the submission to the Constitutional Court, the pursuer of the declarator would want the court to confirm, among others, that it is lawful and within the competence of the government (and other institutions such as, for example, universities and households that introduced mandatory vaccination) to introduce mandatory vaccination policies and similar measures. 

Whatever the decision of the court, it will have constitutional significance and implications for public health law in South Africa — in particular, to help frame and clarify the constitutional and legal questions for any subsequent litigation on Covid-19 vaccination policies.

But it is not inconceivable that the Constitutional Court or, or even another court, will one day be adjudicating rights claims relating to Covid-19 vaccination and the fallout from mandatory vaccination policies.

Claims are made daily by casual observers, political commentators and legal scholars alike regarding the hotly debated issue of vaccine mandates. It is long overdue for the Constitutional Court to weigh in on the matter.

An article in the American Medical Association’s Journal of Ethics, concerning vaccinations in general, makes a compelling read for pursuers of a declarator and with regard to the mandatory vaccine debate in general. Because no society protects individual freedom to an absolute degree, when is it ethical and reasonable to limit individual freedom? The question, in the context of this opinion, would be whether the interference with those rights by a vaccine mandate imposed to protect the health of the general public is a reasonable and justifiable interference with those rights.

In other words, can it meet the requirements of the Limitation Clause, which is section 36 of the Constitution? The Journal of Ethics article points to the following criteria that are used by the courts to assess the reasonableness of limits on individual freedom: (1) proportionality; (2) precedent; (3) context; and (4) sufficiency of access to the good or service being mandated.

For instance, proportionality entails that “higher levels of risk justify more restrictive limitations on individual freedom, where risk is construed as a combination of risks posed by a disease and the ease of transmission of that disease in relevant local circumstances”.

Precedent, on the other hand, speaks to the fact that “more coercive or restrictive approaches should generally only follow failures of less coercive or restrictive approaches. That is unless there is an immediate, severe risk, adults should be free to exercise their autonomy to the extent that vaccination rates afford sufficient public protection”.

My long-held opinion is that vaccination mandates (and not necessarily compulsory vaccination, which is different to mandatory vaccination) are coming, and I am excited that the Constitutional Court is set to clear the confusion and stop the polarising debate on vaccination policies.

Yet the court will likely face a fork in the road, particularly since an influential organisation like the World Health Organization continues to hold the view that mandatory vaccination should be the last resort.

The South African public must not be too naïve in assuming that the government has never before and will never exercise its powers to regulate public health with good intentions. Besides, there are concrete examples of the state demanding vaccinations for the public good.

Like other countries, for example, South Africa has been enforcing the World Health Organization’s Internal Health Regulations (2005) requiring that travellers from yellow fever risk countries carry valid yellow fever vaccination certificates at the point of entry. Travellers who cannot produce such may be refused entry or placed under quarantine surveillance until their certificate becomes valid, or for a prescribed period.

One hopes the Constitutional Court will live up to expectations that the mandatory vaccination issue will be settled once and for all. DM

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