OPINION | Omphemetse Sibanda: Covid-19 jab debate - possibilities and ramifications must be probed

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Ramifications surrounding a mandatory Covid-19 vaccine policy must be explored, writes the author. (Photo by Sharon Seretlo/Gallo Images via Getty Images)
Ramifications surrounding a mandatory Covid-19 vaccine policy must be explored, writes the author. (Photo by Sharon Seretlo/Gallo Images via Getty Images)

As debate rages around whether to make the Covid-19 vaccine mandatory, Omphemetse Sibanda takes a look at other parts of the world which has moved to implement mandatory Covid-19 vaccine policies.

Earlier this year, I expressed a view that the belated South African Covid-19 strategy should consider all key features including but not limited to mandatory vaccination in certain cases.

I am no expert in the area of Preventive Medicine and Hygiene, however, it is still my view that case by case mandatory Covid-19 vaccination is needed for a country like South Africa.

It is interesting that a country believed or touted to be a beacon of good constitutional governance and accountability on the continent, is only now starting to take the debate on mandatory vaccination seriously, if debates and comments this week are anything to go by.

Missed opportunity

As a country, we missed an opportunity to settle nerves and deal with the rise in vaccine hesitancy, and it would seem that it is now too late as we approach a possible fourth wave of Covid-19. Much could have been done earlier to conduct public or citizen consultation regarding this crucial political decision-making. Also, proper public awareness about the different approaches could have been run.

At the centre of the debate is balancing public health priorities and medico-legal and constitutional aspects.

Experts have argued that there is at least an ethical duty to be vaccinated, with varying responses - both supportive and against the view.

The South African Human Rights Commission (SAHRC) has also weighed in and hinted that it endorses the argument that mandatory vaccination is unconstitutional. But the SAHRC position is not shared by everyone. 

Zackie Achmat, one of the co-founders and chairperson of the Treatment Action Campaign disagrees in part with the SAHRC.

"The SAHRC position illustrates a misunderstanding between an infectious illness and one that is contagious. Infectious illnesses such as HIV are not transmitted through casual contact, whereas Covid-19 is a contagious disease that is transmitted through casual contact. Therefore, Covid is a notifiable illness and the health authorities have extensive powers based on a rational limitation of certain fundamental rights such as privacy and freedom of movement", argues Achmat.

According to Achmat, as a country, we must be careful of "a misguided SAHRC-led campaign."

READ | Mpumelelo Mkhabela: Why I think it is time for the govt to make Covid-19 vaccinations mandatory

This is a solid rebuke to an institution that should know better about the Constitution and human rights limitations.

I agree with Achmat. Admittedly and undoubtedly, an a Chapter 9 institution the SAHRC is to be valued for playing a critical role in protecting and promoting human rights in South Africa. However, the effectiveness of the SAHRC should never be judged solely on its opposition of limitation of rights in the Constitution. Sometimes limitations are geared towards promoting the very same right as would vaccination promote the right to health. So far, it would seem that the SAHRC has it twisted and shot from the hip without assessing the impact and relevance of its position against mandatory Covid-19 vaccination approach. 

Talking about guidance, what lesson can be derived from other countries?

Vaccine Bill in France

While tensions around the Covid-19 vaccine rise in South Africa, other jurisdictions have moved swiftly to make Covid-19 inoculation mandatory, and in some cases, the approval has been supported by court rulings.

In France, for instance, a Bill of Vaccine Rules and Health was passed on 26 July 2021. 

"The French parliament early Monday approved a bill that will make Covid-19 vaccinations mandatory for health workers as well as require a health pass in a wide array of social venues as France battles with the fourth wave of coronavirus infections", wrote Agence France-Presse.

The Bill was adopted in addition to the already existing prohibitions against entering museums, cinemas or swimming pools without producing a vaccine pass "showing that they have been vaccinated against Covid-19 or have had a recent negative test."

The latest development in France means that from August you will need to produce a Covid-19 vaccination pass "to enter restaurants and bars and for long-distance train and plane journeys," reports AFP. 

A recent opinion article in the University of Limpopo news magazine on the issue of mandatory workplace vaccination gave as an example case law in Texas, where the court ruled that "if a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired."

The Federal District Court in Texas in Bridges, et al v. Houston Methodist Hospital et al, Docket No. 4:21-cv-01774 (S.D. Tex. 1 June, 2021) dismissed objection against a "hospital's mandatory Covid-19 vaccination policy for employees in a what is hailed as first-of-its-kind court opinion addressing empowering employers to enforce mandatory vaccination of employees against Covid-19."

Sticking out, in this case, is how firm the court dealt with the issue of vaccine hesitancy in the workplace, ordering that employees "can freely choose to accept or refuse a Covid-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else…Every employment includes limits on the worker's behaviour in exchange for his remuneration. This is all part of the bargain."  

The point I am making with these references is that the SAHRC position is highly flawed if it stands for the proposition that the State cannot make vaccination mandatory in certain sectors.

Compromise needed 

If compulsory vaccination sees the light of day as a general policy in South Africa, a compromise may be built into the provisions of such policy or law to deal with the rise of vaccine hesitancy. In France, for example, the recently passed bill provides for "compensation for damage directly attributable to compulsory vaccination against Covid-19 by the National Office for Compensation for Medical Accidents, Iatrogenic Diseases and Nosocomial Infections."

Our different sectors, such as the entertainment industry, can also play a role in helping the country struck a middle-ground approach to mandatory and voluntary vaccination.

According to Forbes, for instance, the San Francisco Bar Owners Alliance representing approximately 300 of the city's bars, took a position that as of 29 July, "customers who want to be inside their members' establishments must either show vaccination proof or a negative test from within the past 72 hours. Those who decline to show proof of vaccination or a negative test can still sit outdoors."

READ | Opinion: The Covid-19 vaccine should not be made mandatory

Before you go on a tirade about how unconstitutional this approach is, let me indicate that it is up to individuals bar members of the Alliance to decide how to enforce this directive. But knowing South Africa, someone not thinking clearly will quickly drum up support against any entertainment establishment requesting proof of vaccination under the misguidance of protecting constitutional and human rights. 

I am pondering what the reaction will be if any South African University makes it compulsory for students and staff to be vaccinated as a condition to resume contact classes. The example I found is that on 31 July 2020 the University of California's then-President, Janet Napolitano, issued an Executive Order ("EO") making it mandatory for all the university students, faculty, and staff living, learning, or working at any university location receive the flu vaccine, subject to some clear exemptions and accommodations. Challenges to this Executive Order failed. The arguments by plaintiffs, one of which was a law professor, were that the Executive Order was an ultra vires act; violated federal and state constitutional rights to privacy, bodily integrity, and autonomy; and abridged their equal protection and First Amendment free exercise of religion rights. 

Balance of rights

In denying their quest to interdict the Executive Order and ruling that a flu vaccine mandate for public college students is legally permissible, the California Superior Court in Kiel, et al. v. The Regents of the Univ. of Cal., et al., No. HG20072843 (Cal.Super. Ct. 4 December, 2020) among others held that the need to secure public health and the balance of harms favoured implementation of the university's flu vaccination requirement.

The California Court relied on the 1905 US Supreme Court decision of Jacobson v. Commonwealth of Massachusetts, which held that the State's mandatory vaccination statute "was a lawful exercise of the state's police power to protect the public health and safety. In recognising that "the principle of vaccination as a means to prevent the spread of smallpox has been enforced in many States by statutes making the vaccination of children a condition of their right to enter or remain in public schools."

The morale of my opinion is that we must avoid the blinkers approach by the SAHRC and consider all the possibilities and ramifications of whichever approach is taken. If, for example, some of the next cohort scheduled for vaccination from 1 September refuse to be jabbed vaccinated what will this mean to our fight against Covid-19? Who should bear the burden of public health of this vaccine-hesitant cohort as a result of Covid-19 complications? Will taxpayers be obligated to shoulder the financial burden of health treatment of those without scientific proof and cogent reasons refusing to take Covid-19 vaccines? 

What is our balance of Covid-19 harm in South Africa? Historian Howard Philips reported that not less than 200,000 people died of the 1918 flu epidemic in South Africa. As we ponder whether to vaccinate or not we must not forget this dreadful loss of life.

 - Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, 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 former Vista University, Soweto Campus.

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