The SA Human Rights Commission (SAHRC) has softened its stance on compulsory COVID-19 vaccinations, saying while it felt no enough had been done to encourage voluntary vaccination, it was “very likely” that a law mandating vaccination would not pass constitutional muster.
The HRC, which called on the government first to explore all options to encourage voluntary vaccination, said while the Constitution protected the right of security in and control over one's body and the right not to be subjected to medical or scientific experiments without informed consent, it was
The SAHRC’s full statement read:
On 30 September 2021, the President announced that the country would move to risk level 1 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. Sometime earlier the Minister of Health had stated that the Department is looking at vaccination mandates.
Before this and, as the Coronavirus or COVID-19 continues to wreak havoc on lives and livelihoods and on the economies of the world, a lively debate had already erupted on whether COVID-19 vaccination should be made mandatory in certain circumstances.
Countries of the world, including South Africa, and the World Health Organization (WHO) are united in the resolve to defeat the Coronavirus or at least to significantly blunt its devastating impact. Medical scientists are united that the best defence against the Coronavirus, at the moment, is vaccination.
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 at all. Data as at 28 September 2021 indicates 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 Stats SA 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 vaccinations regime and the introduction of vaccination passports further fuels the debate on compulsory vaccinations 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.
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.
The Commission’s approach is underpinned by South Africa’s constitutional framework.
While section 7(2) of the 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.
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.
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.
The Commission strongly supports the COVID-19 vaccination as its benefits have been shown to clearly and significantly outweigh its disadvantages.
In spite of the view it takes on mandatory vaccination, the South African Human Rights Commission (Commission) first and foremost supports voluntary vaccination and hopes that members of the public will see the greater benefits for themselves, their communities and the country in being vaccinated, and would weigh these benefits against defending their rights, for example, to bodily integrity and perpetuating the suffering of the whole nation.
The Commission urges government, business, civil society, other organs of state, and those who have already taken the COVID-19 vaccination, to educate their families, communities and others 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. 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.
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.
See more from MedicalBrief archives:
European Court of Human Rights: Mandatory child vaccinations
Health Minister: Vaccination card is ‘an incentive’ not a compulsory passport
Make vaccinations mandatory, says retired ConCourt judge