24 June 2021
South African President Cyril Ramaphosa receiving his vaccination at the Khayelitsha Hospital in Cape Town in February 2021. Archive photo: Jeffrey Abrahams
Covid-19 has caused illness, death, destruction of livelihoods and disruption of education on a global scale. The suffering, loss, mourning and deterioration of mental health are incalculable.
Vaccines that prevent or mitigate Covid-19 infection are now increasingly available. Mass vaccination will save millions of lives, prevent serious illness and allow hundreds of millions across the globe to avoid any infection at all.
All medicines, including vaccines, must be registered for safety, efficacy and quality. Only vaccines registered with the South African Health Products Regulatory Authority (SAHPRA) may be rolled out by government (with private sector assistance). Registration is granted on the grounds that they are safe, effective and of good quality.
Worldwide, nearly three billion vaccines have been administered, mainly in rich countries such as the US, Canada, most of Europe and Japan.
Inoculation with Covid vaccines must be made available to everyone. The Constitution, legislation, as well as international law are clear on this. But a bigger question is this: Can government make Covid vaccinations compulsory?
The Ministry of Labour has issued a directive for compulsory vaccinations in the workplace. This is welcome – but it allows exceptions on the grounds of religion, belief and bodily integrity. Is this acceptable? Should there be consequences for refusing vaccination – and, if so, what should they be?
Some Western Cape teachers have reportedly refused to be vaccinated. Should we stand back respectfully, and defer to their beliefs, while allowing them to continue to teach?
No. If they are not vaccinated, teachers should not be allowed to teach. They may refuse to be vaccinated – of course – but the state should not be required to pay them.
There are sound legal and public health reasons to require compulsory Covid vaccinations. And there are good reasons to impose rational consequences on those who refuse.
First, our Constitution guarantees everyone an unqualified right to life. The state has a duty to respect, protect, promote and advance that right.
Covid is a contagious illness that in a significant proportion leads to serious illness and death. Therefore, to prevent death, the state must vaccinate every person it can reach.
Second, every person also has the right to access healthcare, and the state must progressively realise this right.
Covid causes both mild and serious illness in those infected. People who have become seriously ill require hospitalisation. As a result, health services have been stretched to extremes, with large numbers admitted as critically ill patients. This catastrophic consequence requires government to act.
Here, the Constitution and international law require the state diligently and without delay to protect the right to health of its people by vaccinating them – all of them – against Covid.
Third, illness (whether it leads to recovery or death) results in violations of the fundamental rights to dignity, privacy and autonomy.
Think of the many people who have died of Covid-related illnesses without their loved ones seeing them, or, vulnerable people who are critically ill and not allowed to receive visitors to comfort them.
Think of those previously fit and healthy who because of Covid illness have not been able to go to the toilet without assistance.
The state now has the means to prevent or limit these violations of dignity, privacy and autonomy. The Constitution obliges it to act by enforcing vaccination.
Fourth, the right of hundreds of millions of people to earn a livelihood or to education and care has been violated in this global pandemic.
Covid has led to hunger, starvation, a loss of employment (possibly irreversible). And economies may take a decade or more to recover.
Vaccines will allow most people to return to school and work. They will limit social and economic hardships.
Governments at all levels have the duty to save lives, livelihoods and education by requiring everyone to be vaccinated.
Fifth, Covid has limited the right to worship, bury the dead, practice cultural rituals, play and enjoy sport, engage in recreational activities – and to party.
Vaccinations will allow a return to some normality. The government must restore these rights by limiting or eliminating the social and cultural disruptions Covid has caused.
So, for compelling reasons the state must issue regulations that require everyone to be vaccinated.
But what about those who refuse Covid vaccination? What rights do they have? And how could they exercise them?
The rights that Covid vaccination objectors assert are the rights to freedom of religion, belief, culture and conscience.
Vaccination objectors also assert the right to bodily integrity, including the right not to be experimented on.
The considerations these objections raise cannot be dismissed out of hand. But the question is this: do they trump the state’s imperative duty to prevent a deadly pandemic that is harming millions?
Religion, culture, belief or conscience are part of human existence. Whatever the belief system, secular or theistic, evangelical or traditional, believers’ autonomy, dignity and personality are shaped by their belief systems.
It is true that the state has a duty to respect, protect, promote and advance the right to freedom of conscience, belief, culture and religion of every person – but only to the extent that this does not harm others. Your belief in child sacrifice cannot trump my child’s right to life.
The example sounds fanciful, but it holds the key to understanding the vaccination issue.
Covid causes extreme forms of harm, to people, to communities and to countries, irrespective of gender, class, race, age, religion, nationality, disability, sex, sexual orientation or culture.
Covid harms everyone, but the greatest burdens are carried by the most vulnerable.
Refusing to be vaccinated causes multiple forms of harm. It harms the objector who may be infected with Covid, fall ill, and die.
It may also harm those closest to the objector.
Finally, all who accidentally or unavoidably come into contact with the vaccine objector may be harmed – even those who have, sensibly and rightly, been vaccinated. This is because no vaccine is 100% effective.
Vaccine objectors also assert their rights to bodily integrity (including the right not to be experimented on), autonomy and privacy.
These arguments are reminiscent of those raised in the 1960s – thankfully long-forgotten – against making seatbelts compulsory, or crash-helmets for motorcyclists. Of course you have the right to inflict serious head injuries on yourself if your car crashes. It’s your body. But your right cannot be exercised at enormous social cost to everyone else.
It cannot trump the bodily integrity of those you harm by refusing a simple precaution – whether belting up, helmeting, or taking a simple jab in the arm.
(We are not talking here of situations where vaccination should rationally be delayed, for instance where someone has only recently recovered from Covid. And rare medical reasons may also justify exemption from vaccination.)
The vaccines used in South Africa have been tested and are registered as safe and effective. They are also of good quality.
In addition, there is real-time monitoring of side-effects, safety, efficacy and quality.
This is evidenced in the recent recall of some Johnson & Johnson vaccines because of doubts about the production process.
The claim that Covid vaccines are experimentation on individuals is dangerously unfounded and misguided. The Constitution does not guarantee a right to irrationality cloaked in legal language and irrational gobbledegook.
What measures might the state take against people who refuse the Covid vaccine?
Coercive measures – as with seatbelts and crash helmets – should be rational and proportional.
No one should be criminalised or imprisoned merely for a belief or an irrational practice. It is different if they intentionally harm others.
Then, it is the harm that is punishable, not the belief.
However, any worker – state or private-sector – who refuses vaccination should be boarded without pay or with a significant pay cut.
Any person, whether employed or not, who refuses to be vaccinated must be required to stay at home and to self-isolate as if they were in a hard lockdown.
It is hard to imagine a greater violation of dignity, and a greater infliction of grief, than having to discard the body of a deceased loved one who died of Covid in a river without a funeral. Many in India have suffered this fate.
The state has a duty to take every rational measure to preserve the rights to life, health, dignity, livelihoods, education, movement, religion, culture and recreation by mandating a Covid vaccine.
There can be little doubt that when the right (and duty) to be vaccinated against a deadly pandemic is measured against the right of objectors then the state must require every person to be vaccinated.