FRIDAY BRIEFING | Are forced jabs coming? Experts unpack constitutionality of vaccine mandates

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Friday Briefing

Are forced jabs coming? 

From the start, South Africa's Covid-19 vaccination drive has had an uphill battle.  

First, we had to deal with vaccine apartheid, then there were concerns around AstraZeneca, which the government had procured, eventually leading to the government selling it off.

Eventually, after several stops and starts, the country's vaccine programme finally got underway in May of this year - comprising procurement, distribution and rollout, as well as a (muted) communications campaign . 

Initially, there was excitement and queues as the over-60s were first in line to get jabbed. After a few weeks, enthusiasm waned and the government expanded the drive to lower age groups. Every time a new age group could get vaccinated, there was initial excitement, and then a slowing of the number of people lining up for their Covid-19 vaccine. South Africans, it appeared, didn't want to get vaccinated. 

As the number of Covid cases dropped after the third wave, vaccine complacency appeared to step in, along with behavioural complacency and residual vaccine hesitancy. That was until the Omicron variant rocked up - seemingly to dampen festive cheer.  

On Sunday, 28 November 2021, President Cyril Ramaphosa announced that the country would remain on Level 1 lockdown - confounding expectations of tighter restrictions - before adding the clincher: that with low vaccine uptake, the government was establishing a task-team to examine the implications and modalities for implementing possible vaccine mandates. 

Most formally employed South Africans, and a majority of tertiary students may have already encountered some aspects of a vaccine mandate - but, with low vaccine uptake, it appears this now has broader implications for the navigation of daily life in every other sphere, other than work and study.  

In this week's Friday Briefing, we examine the constitutionality of vaccine mandates and whether it places any limitations on human rights. 

Johannesburg-based advocate Ben Winks is of the view that the Constitution demands vaccine mandates, while independent political analyst Ebrahim Harvey argues that high-profile people, like former chief justice Mogoeng Mogoeng, have not assisted in the battle to get people to willingly get jabbed.

Public health lawyer Safura Abdool Karim writes that research has shown that vaccine mandates have played a role in getting people to get their vaccine, while Johannesburg-based advocate Nyoko Muvangua examines what legislation the government could use to implement a vaccine mandate.

Finally, University of Johannesburg sociologist Kate Alexander says it may perhaps be too late for coercive measures, such as vaccine mandates, and the government should rather deal with other issues - such as expanding the number and availability of vaccine sites, reducing the costs associated with people going to get vaccinated, and generally making it more convenient and accessible, especially for the poor and unemployed. 

It's a heavy read before the weekend, but an important and necessary one. 

Best, 

Vanessa Banton 

Opinions editor


Does the Constitution allow compulsory vaccination? Yes: it commands it

Our Constitution requires the state not only to respect our rights, but also to protect, promote and fulfil them. Ben Winks writes that in lights of this, the government is not only entitled, but obliged to take active steps to contain and eradicate Covid-19, which includes implementing a policy of compulsory vaccination.

Public health vs individual rights: Why Covid-19 vaccine mandates are imperative

Covid-19 variant Omicron was perhaps a blessing in disguise, because it immediately gave rise to many strong views in the public on the need for mandatory vaccinations in some respects to curb its spread, writes Ebrahim Harvey.

Low Covid-19 vaccine uptake: Are mandates the answer and is it constitutional?

If the government decides to implement a Covid-19 vaccine mandate, it will have to decide what type of mandate it will adopt and who it will affect, writes Safura Abdool Karim.

Covid vaccine mandate: Go through Parliament or use Disaster Management Act?

Employers have used the Occupational Health and Safety Act, as well as the Mine Health and Safety Act, as the legal instruments to enforce a vaccine mandate in the workplace. However, the government will have to consider another route if it is going to consider a mandate for the wider population, writes Johannesburg advocate, Dr Nyoko Muvangua.

Vaccine mandates are not a panacea

Kate Alexander writes that mandatory vaccination, while important, is not a solution to the Covid-19 pandemic, and says we need to consider other measures that must be taken.

To receive the Friday Briefing, sign up for the newsletter here.

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