In the past two years, we have seen the extent of the government’s power dolefully expand. With the hard lockdown, we have also seen how far they have and continue to limit citizens’ rights. Many have complied because of their trust in the government to do what is right, fair, and just.
Nearly twenty months into the pandemic, we are once again called to compliance with mandatory vaccination. This time, what is contemplated is not the mere restriction of movement and prohibition on the sale of certain goods, but the very essence of our bodily integrity and right to beliefs and opinions. Is it still just and fair to coerce people into inserting substances into their bodies when they have not consented thereto?
Today, we are called to consider this question and its lawfulness.
In June, and then again in September, of 2021, the Department of Employment and Labour issued a directive that expressly permitted an employer to implement a mandatory vaccination policy subject to specific guidelines. Most of South Africa was, and remains, up in arms over this directive.
In a campaign launched by DearSA, a public forum dedicated to voicing citizens’ opinions on prospective laws and public policy, 46,702 out of 57,754 participants indicated that they do not support the directive or mandatory vaccinations. Increasingly, it seems that support for vaccine mandates is coming from intellectuals in their ivory towers and popular media outlets claiming to be the voice of the people.
My objection to mandatory vaccination policies, and the primary focus of this opinion, stems from a constitutional perspective.
In the first instance, we have never dealt with a rights infringement on the scale contemplated by this directive. Secondly, mandatory vaccination is yet another example of government putting the cart before the horse after having failed its initial duty to create and maintain an informed public.
Better minds than mine have posited that the directive and the adoption of a mandatory vaccination policy will be constitutional. And indeed, in times of crisis, the judiciary does tend to err on the side of caution and defer to government.
But this is not the time for the cautious. It is the time for the bold. And there may still be room for manoeuvre when it comes to the constitutionality of such a policy.
Chapter 2 of the Constitution comprises the Bill of Rights, which entrenches the constitutional rights of citizens. Section 12 of the Constitution states that everyone has the right to freedom and security of person, including the right not to be subjected to medical experiments without informed consent. Further, section 15 of the Constitution provides that everyone has the right to freedom of religion, thought, belief and opinion. It is well-known that these rights are not absolute.
Our courts have on various occasions seen fit to limit constitutional rights through the application of section 36 of the Constitution, which allows for the limitation of rights where it is reasonable and justifiable in an open and democratic society.
In the case of tuberculosis (TB), one of the most infectious diseases in the country, the Cape High Court in Minister of Health of the Province of the Western Cape v Goliath held that the detention of contagious XDR-TB patients in a specialist tuberculosis hospital against their will was constitutionally justifiable. And in Life Healthcare Group and Another v JMS and Another, the High Court allowed blood transfusion for a minor child despite religious objections by the parents, stating that the right to religion is not unfettered.
Essentially, section 36 requires one to weigh up whether the purpose of the limitation outweighs the interests protected by the right. In Goliath, we have an example of where the court weighed public health against patients’ section 12 right to bodily integrity, and the limitation was found to be, rightly, justifiable. Rights are always capable of being circumscribed, but just because they can be does not mean they should be.
One will note that the above cases affect a considerably small section of society. The courts have never been called on to consider a situation whereby their decision would limit a central tenet of millions of individuals’ beliefs and bodily integrity in the manner contemplated by those who favour mandatory vaccinations. Nor have they considered cases where their decision would coerce millions of people to insert a substance in their body that they do consent to. The extent of this limitation is therefore far-reaching and extraordinarily invasive.
Furthermore, if vaccination becomes an operational requirement or condition of employment, employer will have the authority to dismiss based on refusal. This could leave hundreds, if not thousands, of conscientious objectors subject to imminent dismissal. Not to mention, those seeking work will also have to toe the line where they might have reasonable objections to the vaccine.
Government’s supposed purpose behind the directive and mandatory vaccinations is ‘herd immunity’ and ‘public health’.
Allowing employers to implement mandatory vaccinations for employees might serve this purpose, but there are far less restrictive means to achieve this purpose, and section 36 of the Constitution requires that such means to considered before a right is limited. Efforts should be directed at neighbourhoods, towns, and cities with low vaccination numbers, and educate them on the benefits of the vaccine. This leads to the conclusion that the extent of the limitation far exceeds the purpose sought and cannot therefore be justifiable.
In all of this, I should remind the reader that the objection is not to the vaccine (which has been proven to be largely effective) but to coercion by the government to take the vaccine. And while the prevailing opinion in media seems to favour mandatory vaccinations and experts on law seem willing to make government’s justificatory case for it, it rests on civil society to draw a line and say, “Here, but no further.”
Even Napoleon couldn’t force everyone to get vaccinated. The French strongman managed to bend most of Europe to his will, yet when it came to smallpox he could merely encourage his compatriots to get immunised against the deadly disease as a civic duty.
Perhaps for the first time in this country, across gender, citizenship, and race, the majority seems to agree that mandatory vaccinations should not be allowed. We cannot allow these voices to be drowned out by intellectuals in their ivory towers, politicians in their fancy townhouses, and media outlets proclaiming independence but pushing their own narratives only.