Brett Herron | Govt must introduce consequences for those who hold us captive to Covid resurgences

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Doctors treating a Covid-19 patient. (Photo by Antonio Masiello/Getty Images)
Doctors treating a Covid-19 patient. (Photo by Antonio Masiello/Getty Images)

It will take South Africa until 2023 to achieve the 70% vaccination rate at which Covid will be relatively contained so we must either brace ourselves for another year-and-a-half of turbulence and potential lockdowns or we must get to the mystical 70% faster. Brett Herron writes that vaccine mandates is the only way.


The global debate about implementing Covid-19 vaccine mandates to curtail the virus' further evolution and spread is going down the same road as the global debate about curtailing carbon emissions to decelerate climate change: Not fast enough.

Although virtually all of the world's reputable scientists concur on the necessary steps to mitigate these existential crises of our time, some people believe their right to choose, or profit, outweighs their obligations to the rest of humanity.

The right of individuals to choose whether to be vaccinated cannot trump the right of all human beings to a safe and healthy environment. Neither can individuals', corporations' or governments' rights to profit at the expense of accelerating climate change trump the rest of our rights to live in a sustainable world.

The Universal Declaration of Human Rights was not written with pandemics or climate change specifically in mind. Neither was the South African Constitution or Bill of Rights. Both are written on the assumption that people's decisions are guided by a common understanding of ethics, morality and justice.

The Declaration states in chapter eight, under the heading, Health and Democracy, that "everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services".

A right to a healthy environment 

Section 24 of the Constitution provides that everyone has the right to a healthy environment and the right to have the environment protected from pollution and ecological degradation, which promotes conservation and secures ecologically sustainable development. One assumes such an environment would exclude provision for free-floating Covid variants.

According to data on the website covidvax.live, which is tracking the global vaccination rate, it will take South Africa until 18 June 2023 to achieve the 70% vaccination rate at which Covid will be relatively contained (what some term herd immunity). That date is 563 days away.

In other words, we must either brace ourselves for another year-and-a-half of turbulence and potential lockdowns or we must get to the mystical 70% faster.

To achieve this goal and prevent further catastrophes such as the global exclusion to which we are presently being subjected, we have no option but to follow scientific wisdom, rise above vaccine conspiracy, hesitancy and fear, and implement a vaccine mandate.

The fourth wave of Covid infections, driven by the new Omicron variant, is upon us, and has already done enough to severely spoil the festive season – again – and with it, our hopes for the traditional consumer and tourism-driven economic boost.

READ | Kyle Cowan: Apparently we learnt very little from previous variants: Travel bans come too late!

The knee-jerk travel bans and cancellation of international flights, though devastating to us, reflect world leaders' battles to be seen to be doing something to protect their people and economies.

Although these decisions were hasty and not necessarily based on science, it is incumbent on us to do what we can to change the perception that South Africa is a high-risk destination. 

Even more importantly, we need to create a national environment that is more resilient to infection surges, hospitalisations and excess deaths. We can do this by rapidly increasing our languishing vaccination rate.

Our goal was to vaccinate 67% of the adult population by December 2021 but as of 30 November 2021, we had only achieved about half of that, with 35.9% of the adult population fully vaccinated. 

On Sunday, 28 November 2021, President Cyril Ramaphosa announced that he had established a "task team" to engage with stakeholders and advise on a vaccine mandate. This is a welcome step if it is actually followed by rapid implementation. We do not have the luxury of time for endless consultation and debate. The economy is tanking, and unemployment is rising.

Gentle persuasion is not working. 

This is not to advocate for forcing needles into arms but for a safe public health environment.

Vaccine mandates around the world 

Vaccine mandates have already been implemented in a number of countries around the world. Indonesia has made it compulsory for all adults to be vaccinated, Canada has made it compulsory for all government employees and Members of Parliament to be vaccinated, and the USA has mandated the shots for all federal employees, to be followed by all private-sector employees from early next year.

The CEO of one US corporation that has already implemented a vaccine mandate sent a message to those who remained unvaccinated and lost their employment: "I'd also like to say to those who remain unvaccinated – this is your choice, and we respect that choice. If you change your mind and want to rejoin Tyson – let us know. Our doors are open."

Australia, New Zealand, Britain and France have implemented vaccine mandates for some, or all, of their healthcare workers, while the state of Western Australia has mandated that employees in the mining sector are also fully vaccinated by the end of the year. Several countries have made vaccination a requirement for people to enter public places. Two weeks ago, Austria placed every unvaccinated person into lockdown. Denmark, Netherlands and Switzerland require proof of vaccination in order for people to enter restaurants and bars.

In South Africa, the Minister of Labour issued a new direction on occupational health and safety measures which paved the way for employers to require their employees to be vaccinated in order to be in the workplace. Old Mutual, a large employer, has already announced a vaccine mandate for its employees, as has Discovery. 

Discovery reported a massive increase in vaccination rate among its employees from about 20% to 94% in the three months after it announced a mandatory vaccination policy. 

READ | Ben Winks: Does the Constitution allow compulsory vaccination? Yes: It commands it

There are ethical considerations that should be met before a vaccine mandate is implemented. There must be a sufficient supply of the vaccine and the vaccine must be approved, safe and effective. The President has confirmed that the country has procured sufficient vaccine supplies and that there should not be constraints to access. 

There are also safety considerations. With about eight billion doses of the vaccine having been administered around the world, and about 50 countries already having achieved 70% coverage, there is no credible evidence that the vaccines are not safe. 

Finally, there is the question of legality and whether a mandate can pass constitutionality. It is now trite law that our constitutional rights are not absolute and can be limited by way of a law of general application under certain circumstances. I do not believe that a vaccine mandate would breach our non-derogable rights.

Drug-resistant tuberculosis case 

The National Health Act is a relevant law of general application, and Section 7 of this Act provides for the administration of a health service without the "user's consent". 

The Western Cape High Court considered the constitutionality of this section when the then Minister of Health for the Western Cape brought an application in 2007 to force the respondents to receive inpatient treatment for the highly infectious and drug-resistant tuberculosis (XDRTB). The judgment traversed patient rights in our Constitution, and in several international covenants, and upheld Sec 7 of the Act. This judgment is persuasive in the current debate about legality.

In any event, the national government sentiment does not appear to be leaning towards compulsory vaccination, like Indonesia. It seems more likely that the vaccine mandate will be implemented in the workplace and for access to public places and travel. Those who exercise their choice not to be vaccinated will be faced with restrictions that will minimise their exposure to the rest of us and minimise the public health risk.

We have a public health crisis with massive risks to life, health and livelihoods. Vaccines are regarded as our most effective tool to fight this pandemic, save lives and rescue our economic activity.

Ideally, 70% of the adult population would be eager to get vaccinated and voluntarily get on with it. Unfortunately, we can no longer afford to delay. Government must use its powers to introduce consequences for those who hold us captive to resurgences. 

- Brett Herron, GOOD Secretary-General

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