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HomeMedico-Legal AnalysisThe contested terrain of mandating vaccinations at SA universities

The contested terrain of mandating vaccinations at SA universities

SA universities have entered the contested discourse of whether to mandate the COVID-19 vaccine for the safe return of students and staff to campuses or not, writes the University of Limpopo’s dean of law, Prof Omphemetse Sibanda, in Daily Maverick.

Some – such as Stellenbosch University, the University of the Free State and University of Cape Town – have already entered the “uncharted” waters of vaccine mandates for students and staff. UCT has gone a step further, having discussed the issue of mandatory vaccination proposal for the safe return of students to campuses at senate level and the proposal was subsequently approved in-principle by the UCT Council, to take effect from January 2022.

Sibanda says how we address concerns about vaccination as universities is critical: “What is often lacking in the vaccine mandates discussions, in my view, is not discussing and making clear the nature of the mandates. Vaccine mandates fall into two categories: the ‘hard’ mandate category where students or staff cannot attend classes or be at the workplace unless they are fully vaccinated; and the ‘soft’ mandates category where people are nudged to get vaccinated.”

In his analysis on the Daily Maverick site, Sibanda says the question will always come to whether a university has created a legally compliant policy on vaccine mandates to ensure that everyone is safe from any health hazard relating to COVID-19. He says universities must appreciate that vaccine mandate policies or resolutions are, in themselves, not enough. “Universities need to establish supportive policies and practices to make the implementation of these mandates easy and not disruptive to the academic project.”

While he notes the major obstacle to vaccine mandates is human rights, Sibanda says this has been largely divisive and disingenuous. “Common in the human rights-based approach of justifications for refusing vaccination has been people citing bodily integrity, personal liberty and freedom. Not all arguments hold water. Does our Constitution, read properly, allow anyone a right to go into a crowded lecture hall or workplace unmasked, unvaccinated, untested amid pandemics? The answer is no.’ He says the same answer applies to whether vaccine mandates are unfairly and unethically discriminatory.

“You can only talk of wrong or unfair discrimination when such discrimination is based on unconstitutional and on irrational reasons. Let it not be forgotten that there is also a public health exception to some of the rights cited as justifications against vaccinations. One expects university communities to be intelligent enough to know about these exceptions.”

Who must make the final decision? Sibanda says that as a membership organisation representing SA’s universities, Universities SA (USAf) “must take a decisive leadership role concerning vaccine mandates”.

“It must live up to its organisational mandate of influencing and contributing to policy positions regarding higher education. Vaccine mandate policies at universities are such policies needing USAf’s positioning and influencing.”

USAf, he says, must “facilitate effective dialogue among universities, government, business, Parliament and other stakeholders on issues affecting universities” as per its mandate. If the objections against vaccination for safe return to campus persist, the next platform for debates must be for the courts to address the issue.

“Universities have a constitutional responsibility to bring back students to campuses safely and to resume normal operations. Courts in other jurisdictions have already had the opportunity to rule on universities’ vaccine mandates, so far with their COVID-19 vaccination mandate policies not blocked by courts.”

 

Daily Maverick article – South African universities heading in the right direction by mandating Covid-19 vaccination (Open access)

 

See more from MedicalBrief archives:

 

UCT and Stellenbosch academics line up behind mandatory COVID-19 vaccines

 

British university makes COVID vaccine mandatory for students

 

The debate over a mandatory vaccine policy for South Africa

 

US university’s compulsory vaccination requirement for staff and students upheld

 

 

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