Civil society organisation the Health Justice Initiative (HJI) has filed papers at the Gauteng High Court, Pretoria, for the government to make expert COVID-19 pandemic advice and decisions public. The matter centres on access to information that furthers transparency and accountability, which it says will set a rigorous precedent for future pandemics.
The cited respondents are the minister of health, the information officer of the National Department of Health, the minister of Cooperative Governance and Traditional Affairs, minister of Sports, Arts and Culture, and the South African Medical Research Council (SAMRC).
The HJI says the health minister and national Coronavirus Command Council have been guided by the “minister’s advisers” who either serve on various Ministerial Advisory Committees (MACs) or provide advice outside formal MAC structures, and it is now seeking relief from the courts to access information on who these expert advisers are, what advice they provided and how this informed the government’s decision-making process. The HJI also wants to establish if there are any cases where expert advice was not followed or from which it deviated.
Additionally, the HJI wants clarity on the decision processes and rationale for vaccinating elite athletes, sports administrators and others ahead of their age cohort through the specially set up Sisonke vaccine programme.
Dr Marlise Richter, senior researcher at the HJI, said: “Although we are happy that President Cyril Ramaphosa committed South Africa to COVID-19 interventions based on ‘science and evidence’, at the same time the public needs to know on what evidence, and on whose advice, government decisions and interventions were based. The public has a right to know whether the recommendations of any or all of the expert advisory committees were considered and followed. And, if not, what the rationale was for departing from it.”
Managing the current pandemic and also future pandemics requires ethical, and evidence-based decision-making based on accepted public health principles and research in the context of scarce resources, said the HJI. “Pandemic readiness” requires that clear and transparent processes are put in place to ethically and fairly allocate scarce public goods to those who most urgently require it,” she said.
“Government departments and all research and regulatory bodies should have open decision-making processes. Where ‘queue jumping’ in accessing vaccines has happened, the public has a right to know how such authorisation came about and what reasons were provided for deviating from public health and ethical guidance on prioritisation. There was a national policy of vaccinating per age cohort, which was not followed – to benefit people other than healthcare workers in a time of scarce vaccine supplies,” Richter added.
Although the HJI had made numerous requests for information to all parties through the Promotion of Access to Information Act (PAIA) from mid-2021 onwards, the South African Health Product Regulatory Authority (SAHPRA) is the only organisation that responded and provided all requested information. The remaining respondents have either ignored the formal requests or provided insufficient information, Richter added.
The HJI is seeking:
1. The names of all of the minister’s advisers.
2. Copies of all expert advisories and recommendations related to:
a. vaccinating people with co-morbidities;
b. vaccine selection and use;
c. priority group eligibility criteria, including any relevant departmental frameworks;
d. the non-use of the Covishield (AstraZeneca-University of Oxford) vaccine and the details surrounding its sale or donation;
3. Copies of all requests and regulatory/ethics/other approvals to permit so-called ‘special groups’ to be vaccinated before their respective age cohorts in 2021, including under the Sisonke programme. Special groups include government officials and certain sports teams and administrators.
Litigation should always be a last resort. However, the HJI said this was now necessary as all requests for information had fallen on deaf ears. The organisation has urged the respondents to publish all relevant information, adding that there should be no secrecy in a pandemic.
Note: This matter (Case 2) follows the HJI’s February 2022 court application against the Minister of Health and Department of Health Information Officer to make public all COVID-19 vaccine procurement agreements (Case 1). That matter is still before the courts.
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