The South African Human Rights Commission has clarified its position on whether vaccinations in South Africa could be made mandatory. In a statement today (04 October 2021) the commission noted that the continued slow uptake of the vaccines, coupled with the introduction of vaccination passports, has further fueled the debate on compulsory vaccinations in the country.
The question is whether compelling a person to take the Covid-19 vaccination would violate human rights.
“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.”
“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.”
Therefore, it will be constitutionally permissible to require people from age groups that are eligible for vaccination to vaccinate, provided that this is done following the processes stipulated in the Constitution, the Commission explained.
“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 muster.”
Only as a last resort
The commission said that it strongly supports Covid-19 vaccinations as its benefits have been shown to clearly and significantly outweigh possible disadvantages.
“In spite of the view it takes on mandatory vaccination, the South African Human Rights 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,” it said.
The commission further noted that not all people who have not yet been vaccinated are against the vaccinations.
“Many of them are vaccine-hesitant and require clear, understandable information from credible sources to help them decide 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 a 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 to convince them to vaccinate voluntarily.”
South Africa administered only 52,556 Covid-19 vaccines in the past 24 hours, which is 43,137 more shots compared to a week ago. According to the Department of Health, this means the country has now distributed 17,875,187 vaccines since the start of the rollout program.
South Africa now has 9,075,189 fully vaccinated adults, of which 37,982 people either received the Johnson & Johnson one-shot vaccine or the second dose of the Pfizer jab. The aim is to have in excess of 30 million adults vaccinated by the end of the year, representing approximately 70% of the total population.
“To reach our goal we need to administer an additional 16 million vaccine doses this year, which amounts to around 250,000 first dose vaccinations every single workday of every week until mid-December, President Ramaphosa said.