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

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Research has shown that the countries that implemented vaccine mandates saw increases in vaccine uptake in their populations, writes the author. (Getty)
Research has shown that the countries that implemented vaccine mandates saw increases in vaccine uptake in their populations, writes the author. (Getty)

If 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.

On 28 November 2021, President Ramaphosa announced that he was convening a task force to consider whether the government should make Covid-19 vaccines mandatory for South Africans.

This announcement came on the heels of the discovery of the Omicron variant and the beginnings of South Africa's fourth wave.

More importantly, the vaccination rate in South Africa has been stagnating, with less than 29% of the population being vaccinated with at least one dose and demand for vaccines dropping.

This is despite the government's Vooma vaccination drives and increasingly widespread adoption of workplace vaccine mandates.

It is clear that something needs to be done to increase vaccine uptake in South Africa, and vaccine mandates may be the answer. 

What are vaccine mandates?

Vaccine mandates are policies and laws that incentivise and promote vaccination by requiring individuals to be vaccinated if they want to work in particular places, access certain types of services, use certain amenities. 

Several countries have adopted various kinds of vaccine mandates. For example, in Italy, healthcare workers cannot work in healthcare facilities without being vaccinated. In Bulgaria, you cannot visit restaurants and other public places without showing proof that you are vaccinated. One of the more unusual mandates is in Singapore where the government will not pay the healthcare costs of those who are "unvaccinated by choice".

Research has shown that the countries that implemented vaccine mandates saw increases in vaccine uptake in their populations. This means that vaccine mandates can be an effective way to increase vaccination rates.

READ | Adriaan Basson: The case for mandatory Covid-19 vaccinations in SA

If the South African government does proceed with implementing a vaccine mandate, the first question will be to decide what type of mandate to adopt and who it will cover.

Mandatory vaccination policies have become increasingly common in South African workplaces over the past few months, giving us a sense of what mandates may look like. However, there is a lot of inconsistency in these policies from one workplace to another - while some only allow exemptions on strict, health-related grounds, others have given employees significant leeway and allowed for religious and philosophical objections or allowed employees to get weekly tests in lieu of vaccination. 

What adds to the uncertainty for many is the fact that the constitutionality of these policies is still untested. There are currently 10 cases in the CCMA challenging termination where an employee has refused to be vaccinated. 

Do we need new laws to adopt a vaccine mandate?

The existing legislation on vaccine mandates is related to what many term "compelled" or "compulsory vaccination". Under the State of Disaster regulations and notifiable conditions regulations, individuals can be required to take certain kinds of treatments (or a vaccine) if a court orders them to do so.

However, these laws apply to individuals and operate on a case-by-case basis. For this reason, they cannot be used to implement the kind of vaccine mandates we have seen used for Covid-19. 

However, the National Health Act was used to introduce the Yellow Fever vaccine passport. This passport is a vaccine mandate similar to the ones needed for Covid-19, indicating that issuing regulations under the National Health Act may be a potential way for the government to introduce a vaccine mandate.

In his Sunday speech, President Ramaphosa indicated that the Covid-19 response may be moving from the Disaster Management Act Framework to instead be housed under the National Health Act. It is possible that this new vaccine mandate will be introduced in this shift or that the government will consider passing a new law altogether. The mechanism used will likely depend on what type of mandate is adopted.

Are mandates constitutional?

There are very strong and differing opinions on whether a vaccine mandate is constitutional. Some believe that vaccine mandates are unconstitutional because they infringe on constitutional rights. Many legal experts say these infringements are justifiable due to the public health benefit of vaccine mandates.

In truth, it is not clear what a constitutional vaccine mandate looks like because there isn't a clear legal precedent for the adoption of vaccine mandates in South Africa.

READ | Analysis: Donrich Thaldar, Bonginkosi Shozi: Mandatory Covid-19 vaccine policy not best option

Everyone in South Africa has a right to bodily integrity which entitles us to not be subjected to medical treatment without our consent. However, every right in the Bill of Rights can be limited if the limitation is justifiable. In weighing whether a vaccine mandate constitutes a justifiable limitation to individual rights, a court would have to consider the importance of increasing vaccination and whether vaccine mandates are an effective way to do this.

Most importantly, however, a court will also have to consider the rights that are being protected by introducing vaccine mandates. Here, the many cases which had to determine whether other public health measures to control the spread of Covid-19 - such as lockdowns, restriction of movements and prohibiting the sale of alcohol - justifiably limited individual rights.

Most of these decisions have found that the severity of the Covid-19 pandemic and the preservation of public health warranted the limitation of individual rights.

Solid basis

The Supreme Court of Appeal's decision in Esau provides one of the most definitive statements - finding that Covid-19 measures protect and preserve the right to life and health - and that this provides a solid basis to limit individual rights when responding to the pandemic. This provides a strong indication that a vaccine mandate will be constitutional and may justifiably limit individual rights.

However, we will not have certainty until the government takes strong and decisive action to introduce vaccine mandates.

The discovery of the Omicron variant and the looming fourth wave need urgent action to increase vaccination rates. We have seen other countries benefit from vaccine mandates in a variety of forms.

After months of delaying a decision on mandates, government must move swiftly to incorporate vaccine mandates as part of our country's response to this next phase of the Covid-19 pandemic. 

 Safura Abdool Karim is a public health lawyer at the University of the Witwatersrand (Wits). She also consults for a health policy research unit funded by the South African Medical Research Council and Wits, the Centre for Health Economics and Decision Science (Priceless).

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of New

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