The devastating effects of COVID-19 on public health are well known, especially when the necessary social distancing measures are not taken to avoid contagion. It is also clear that strict social distancing measures have significant impacts on the economy, people’s freedom, the education of children and adolescents, and the physical and mental health of the population. The development of effective vaccines for COVID-19 offers the main route out of the present tragic bind, it has been acknowledged by different scholars. It is important to note that effective vaccines can help reduce COVID-19-related mortality and hospitalization. It is also hoped that mass vaccination will help achieve herd immunity.
The global roll out of vaccines has been met with challenges related to procurement, logistics and supply as a result of vaccine nationalism and vaccine. Thus, vaccines pose dilemmas and difficult choices of their own. The first is related to the distribution of vaccines at the global level. Production capacity is still insufficient to meet global demand and because the existing vaccines are mainly distributed through market mechanisms access has been mostly restricted to the countries with the greatest purchasing power. The challenges of global justice are followed by others at the national level in terms of whom to prioritize for vaccination: health professionals, other essential workers, people in high-risk groups, or those living in areas with high degrees of contagion.
The next debate may well concern vaccine mandates. Mandatory COVID-19 vaccination is by no means a new debate globally, it has been discussed in the specialist literature and is being considered for specific groups. Compulsory vaccination raises difficult issues due to the direct clash between, on one side, the autonomy of individuals to decide about their own bodies, which includes the right to refuse medical interventions, and, on the other, the imperative to protect public health, which may require restricting individual liberties to avoid disease and protect life in the population, (Emmanuel E. J et al 20).
Mandatory vaccination is understood as the legal obligation to receive a vaccine or to take minors under one’s care to receive a vaccine. There may be legal sanctions for non-compliers, mandatory vaccination does not necessarily imply that people will be forced to vaccinate. Mandatory vaccination exists in several countries, although it varies widely in terms of scope (in other words, which vaccines are mandated), reach (it may be general or targeted at children, risk groups, or health professionals), the types and intensity of sanctions (including fines, the loss of social benefits, and criminal sanctions), and the possibility of opting out (whether for religious, philosophical, or medical reasons), (Harmon S.H.E, 20). Mandatory vaccination has been provided for in many countries’ law.
Mandatory vaccination for COVID-19 has been the object of heated debate in many countries. The legality and constitutionality of mandatory vaccination has led to interesting debates. I recently came across forwarded messages on various WhatsApp groups, one written by Prof Otieno Ngira from Nigeria and Prof Deonanda from Canada uOttawa. Prof Ngira said:
“Go get vaccinated. Don’t be silly”. “You somehow survived childhood because you were vaccinated against polio, measles, hepatitis etc then now you want us to believe that vaccines are manufactured to kill you”?
For his part, Prof Deonanda was asked by a student journalist what he would say to the 20% of polled uOttawa students who complain that our campus’s vaccine requirements are “infringed” on their rights of free movement. His response was:
“We already infringe on your movements. You can’t cross the border without a passport. You can’t drive a car without a license. You can’t ride the bus without a pass. “You can’t enter the night club unless your ID says you are over 18”. “You can’t enter private property and the University is private property unless the owners give your permission and you can’t come to Campus without being vaccinated because that’s against the public good”. “A free society is not an anarchic society. If you don’t want to be vaccinated, you have the freedom not to come to campus”.
Recently in Limpopo South Africa a campaign strategy led by the MEC for health, Phophi Ramathuba had tongues wagging with many social media commentators saying it was “tone deaf” and “distasteful”. The campaign slogan read “No vaccine, No Mjolo”. The slogan was adopted to ramp up vaccination amongst citizen 18 and older, it said, “Mjolo slaps better when protected, “no condom, no sex. No vaccine certificate, no dating read the post.
Defending the campaign MEC Ramathuba told journalists that the slogan was intended to speak to young adults because mjolo is their thing. Ramathuba said the messaging on the post was a “simplification of science”. Earlier, poet Lebo Mashile had suggested that women should normalize without sex from primarily who refuse to get to get vaccinated against the virus.
In a strange twist of events a specialist physician from Mbombela Mpumalanga South Africa refused to see un-vaccinated patients. Dr Tafara Machiri put a notice outside his practice advising patients to choose another physician if they refuse to get vaccinated. Dr Machiri said he was tired of losing people to Covid-19 and had decided he will no longer be seeing un-vaccinated patients at his practice. He said “compassion fatigue” had led to this. The note also read “while he will not be forcing people to take vaccine, he will also not allow them to continue dying from an illness that is preventable.”
Still in South Africa, some students at the University of Cape town (UCT) said a possible plan to implement a policy that will require students to be vaccinated against Covid-19 before registering at the institution will infringe on the rights of student. UCT confirmed that a proposal on mandating vaccination will be considered by senate.
It is important to note that tensions between individual freedom and public health is not a new phenomenon. It has been recognized in international human rights law documents for example, the European Convention on Human Rights, the African Human Rights Charter amongst many others that accept restrictions on some civil rights if necessary to protect health. This tension has certainly been accentuated by the COVID-19 pandemic and the public measures to contain it.
Academics working in the areas of philosophy and law with specialization in, inter-alia moral and political philosophy, bio medical ethics, health law and human rights law made submissions recently on compulsory Covid-19 vaccination. That is, a requirement on individuals to undergo vaccination as a condition of release from pandemic related restrictions on liberty, including on movement and associations.
In their submissions, the academics stated that governments will need to consider the human rights law dimensions of compulsory vaccination and that they expected the Covid-19 vaccines will become available in sufficient quantity to enable population wide immunization. Compulsory vaccination should be carried in accordance with the human rights dimensions by referring to Human Rights Act 1998, African Human Rights Charter.
Firstly, a discussion of the reasons why compulsory vaccination may need to be considered. That is, an overview of relevant legal provisions. Here, an examination of human rights law compliance of compulsory vaccination investigates two parity arguments. That is, if a Covid-19 lock down measures are compatible with human rights law, then it is arguable that compulsory vaccination is too (Lock down parity).
If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (Mental health parity). They concluded that “as and when a vaccine becomes available at scale, the government should give serious consideration to compulsory immunization as a means of reducing the impacts of Covid-19”.
In discussing compulsory vaccination and human rights law compliance, the academics focused on the human rights enshrined in the European Convention on Human rights. They explained the basis on which compulsory vaccination measures interferes with ECHR rights and advised two parity arguments, that is, compulsory vaccination as stated in Article 8 of ECHR, which protects inter-alia the right to private and family life. It is the most relevant to compulsory medicine,
Article 8, ECHR provides : firstly, everyone has the right to respect for his private and family life and secondly , there shall be no interference by a public authority with the exercise of his right except such is in accordance with the law and is necessary democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedom of others.
With millions of people receiving covid-19 vaccines globally, some countries have already started planning the implementation of “vaccine passports” accessible certificates confirming covid-19 vaccination linked to the identity of the holder. The purpose of vaccine passports, governments argue, is to allow people to travel, attend large gatherings, access public venues, and return to work without compromising personal safety and public health.
Thabo Lucas Seleke is a researcher and scholar, Global Health Policy Analysis ( LSHTM)
