By Anton Katz
COVID-19 has and will continue to bring many challenges to, and indeed changes to the laws and their implementation.
In normal times it is the legislature who make the law and the executive (the government) which implements the laws. The judicial branch (the courts) rule on the limits of the exercise of the legislative and executive powers. And the courts determine whether constitutional rights have been violated by the laws enacted by parliament and/or their manner of execution by the government. But our pandemic dominated lives are not normal times — it has been the government that have been making the laws, which govern individual’s rights. And the government does so with limited, if any consultation at all, with the public. And the courts have generally been taking a hands-off approach. The courts have allowed all manner of violations of rights by the government — they have deferred to the executive as to how best to deal with the spread of COVID-19. Thus, when the government has banned tobacco, alcohol, limited exercise hours, set curfews, banned the sale of hot food and prohibited beach-going the courts have not interfered and not upheld challenges to the regulations. Many complex human rights and other issues arise.
The rights to freedom of movement, choose a trade, occupation or profession, education and access to health care services are at stake. Insurance claims and other commercial concerns are directly impacted by whatever government action is taken or not taken. An obvious example is the roll out of vaccines. A question is can government enjoy a monopoly on the import and manufacture of vaccinations?
I think it can safely be suggested large numbers of South Africans are reluctant to be administered the COVID-19 vaccine. In order to achieve herd immunity, medical experts have estimated that at least 40 million in South Africa will need to be injected. So, the question arises: can people be forced to obtain a vaccination? The World Health Organisation has indicated that it does not support forced vaccinations. The question has been and will be debated in many countries, as vaccine-skepticism is certainly not limited to South Africa.
As far as South African law is concerned to what extent, directly or indirectly, can government compel individuals to be vaccinated against the COVID-19 or any other virus against their will? And what about the private sector — can private medical aid schemes deny benefits to those who refuse consent to be vaccinated or reward those who do get vaccinated? May parents force their children to be vaccinated; and can adult children require their elderly parents to obtain vaccinations — and what about spouses? What about the labour environment — could an employer require its employees to get a vaccination or lose their employment, and may it depend on alleged operational requirements?
Other questions arise, such as what role, if any, does a legitimate religious objection to being vaccinated play in the debate. And could health care workers, doctors and nurses for example, refuse to treat those who have not been vaccinated or could they refuse to administer vaccinations. What about the immigration laws? Could Home Affairs ban the entry into South Africa of those who are not able to prove they have been vaccinated?
In Spain, for example, there is speculation of not allowing unvaccinated people into concerts or football games. And schools: could schools, private or government, bar children not vaccinated? What about care facilities for older persons — may they evacuate residents who are not vaccinated?
Like all law, the starting point is the Constitution. The Constitution protects every person’s right to bodily integrity, which includes the right to security in and control over their body. And the right to freedom of conscience, religion, thought belief and opinion is also protected. There can be no doubt that forced vaccinations violate rights. Yet that is not the end of the debate.
Freedom is two-way street: each person lives in a community with others. So, if one person’s conduct constitutes a danger to the lives of others the Constitution makes clear that it is reasonable and justifiable for their rights to be limited by the law. Is it reasonable and justifiable for the law to compel, and in so doing violate rights, every person to obtain a COVID-19 vaccination?
There are, of course, many different ways the government could compel vaccinations. The most draconian is to criminalise the failure/refusal to get vaccinated; it would be committing a crime on pain of criminal sanction to not be vaccinated. Another harsh measure could be to require individuals to remain at home until and unless they have been vaccinated. Leaving home without being vaccinated would constitute a criminal offence. What about the millions of social grant recipients — could they be denied their grants if they refuse?
A less serious measure, I suppose, which could probably satisfy the reasonable and justifiable standard could be for government to provide access to free health care only to those who have been vaccinated.
In December 2020, the Brazil Supreme Court ruled against COVID anti-vaxxers. It ruled that no law may order citizens to be taken to receive the vaccine by force; but laws may require a restriction of rights if citizens fail to demonstrate they have been vaccinated – like not being allowed to file for a benefit or being banned from entering a place or enrolling at a public school. In the same ruling, the court decided that parents or guardians of children and adolescents must vaccinate their children. Vaccines against potentially life-threatening diseases such as measles and meningitis have long been mandatory for children in Brazil and the Court dismissed a separate case seeking to free parents from that obligation due to religious beliefs.
My sense is that the courts in South Africa will follow a similar line to that of the Brazil court. But in response to any court challenge the government will need to prove by way of solid evidence that the challenged measures it has imposed have backed up by scientific evidence. With proof of the factual reason for the violation of rights challenges may well succeed.
Published in the print edition of the February 2021 issue. Download the February 2021 issue PDF here.
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