Mandatory vaccination should be ’last resort’ - SAHRC

THE SA Human Rights Commission (SAHRC) said on Monday it believes the government has not done enough to educate communities and to actively encourage vaccination before a consideration is made on mandatory vaccinations in South Africa.

“In our view, if the state decides to compel all eligible people in the country to take the Covid-19 vaccination, it should do so as the last resort. The commission is not convinced at this stage that all efforts have been made, particularly by the state, to educate people on the need for and workings of the vaccines in an effort to convince them to voluntarily vaccinate,” said SAHRC chairperson Bongani Majola.

The SAHRC urged the government, business, civil society, other organs of the state and individuals who have already taken the Covid-19 vaccination to educate their families and communities on the benefits of vaccination, allay fears, and dispel myths and misinformation about the vaccines.

“It is important to note that not all people who have not yet vaccinated are against vaccination. Many of them are ’vaccine hesitant’ and require clear, comprehensible information from credible sources to help them make a decision on whether to vaccinate or not,” said Majola.

“It also seems that some who want to be vaccinated have not been able to get the vaccination, for various reasons, including the lack of required documentation.”

Last week, President Cyril Ramaphosa announced that South Africa was moving to Level 1 of the lockdown and added that the Department of Health will soon be rolling out a vaccination certificate that can be used to facilitate travel and other forms of activity that require proof of vaccination status.

The SAHRC noted that there has “unfortunately” been a slow uptake of vaccinations, raising fears about the length of time it will take to reach population-wide immunity, if it can be reached at all.

Data as at September 28, 2021 indicated that since February 2021, when South Africa started with vaccinations, only approximately 17.2 million doses have been administered, while the population estimates released by StatsSA in 2020 indicated that the total population is 59.62 million.

“This slow uptake of the vaccines, coupled with the question of a general mandatory vaccination regime and the introduction of vaccination passports, further fuels the debate on compulsory vaccination, which now continues to occupy the current discourse in all sectors of life in this country. For many the question is whether compelling a person to take the Covid-19 vaccination would violate human rights entrenched in our Constitution,” said Majola.

“The South African Human Rights Commission notes that the Constitution clearly protects several rights of individuals, including the right to health, the right to life, the right to freedom of religion, the right to a healthy environment and the right of freedom and security of person, which includes the right of security in and control over one’s body and the right not to be subjected to medical or scientific experiments without one’s informed consent.”

Majola, however, highlighted that while section 7(2) of the South African Constitution enjoins the state to respect, protect, promote and fulfil the rights in the Bill of Rights, its sub-section (3) provides that the rights in the Bill of Rights are subject to limitations contained in section 36 or other provisions in the Bill of Rights.

“Therefore, the rights of individuals, save for non-derogable rights (such as the rights to life and human dignity) can be limited in terms of section 36 of the Constitution. Firstly, when the limitation of these rights is done in terms of a law of general application, that is if the state passes a law that articulates a general compulsory Covid-19 vaccination regime,” he said.

“Secondly, to the extent that the limitation itself is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

“It will therefore be constitutionally permissible to require people, from age groups that are eligible for vaccination to vaccinate, provided that this is done in accordance with the processes stipulated in the Constitution.”

Majola said given that the pandemic is an existential crisis that affects all human beings and implicates both rights and responsibilities, “it is highly likely that a general law, mandating vaccination will pass constitutional master”.