by PANDA Lawyers
In recent weeks, we have seen a concerted effort being made in the media to justify a mandatory vaccination scheme against Covid-19. These analyses often correctly identify the legal issues, but misrepresent the science, which quite simply does not justify the limitations on civil liberties that mandatory vaccination would imply. A mandatory Covid-19 vaccination scheme would be patently unconstitutional.
If the Covid-pandemic has taught us anything, it is that democracy has been suspended almost universally across the planet. For more than 500 days, Minister Dlamini-Zuma has governed the minutiae of our lives by decree. The Disaster Management Act permits her, and her alone, to make regulations that dictate when we must go home, when we can shop, what we can buy, what we must wear, how we must worship and who we can see. She has this power in perpetuity. Parliament has not had any say in these draconian rules. As South Africa last week became the world record holder in unemployment, our people have not once been asked what they think about lockdown measures that have impoverished them and, if Government offices are to be believed, based on excess deaths, have nevertheless resulted in the second-highest Covid-19 mortality rate in the world (after Peru).
Minister Dlamini-Zuma assumes she knows best and she is not questioned because the fear that has been cultured by the government not only numbs the citizenry, but is stoked by our Media and has impacted the benches of many of our courts.
As the spectacle of committing South Africans to a lifetime of compulsory, bi-annual vaccinations looms, the question is whether or not a mandatory Covid-19 vaccine programme is legal. To this question the answer is clearly: No.
The legal argument that has been presented in the South African media over the last two weeks is, unashamedly, an academic argument for allowing mandatory vaccination. Correctly, it has been assumed nearly universally by those presenting the argument that such measures are without precedent in the history of our democracy, in principle anti-democratic and that the merits for the argument are weak. With a view to explaining how the state could argue for a vaccine mandate, three articles appeared in the Daily Maverick where Halton Cheadle and Glenda Gray explored questions related to the constitutionality of vaccine mandates. In this article, we focus on the issues raised in the first.
Glenda Gray did not disclose her conflicts of interests. She is the “President and CEO” of the South African Medical Research Council (“SAMRC”). In June this year, the Bill & Melinda Gates Foundation (“Gates Foundation”), the largest investor in vaccines, gave the SAMRC about R36 million. Gray was also responsible for the SAMRC’s partnership with Johnson & Johnson on the “Sisonke” Covid-19 vaccine trial and she is a member of the board of the Global Antibiotic Research and Development Partnership which is also funded, in part, by the Gates Foundation. Halton Cheadle is Professor Emeritus at the University of Cape Town, a university that has received in excess of R71 million from the Gates Foundation since 2019. He specialises in drafting legislation for government, notably in relation to employment laws. PANDA has no competing interests.
It is trite that South Africa does not currently mandate any vaccines and there is presently no legislation in place, or envisaged by means of which the state might force anyone to be vaccinated. Given the lack of precedent and the issues involved, legislation that might implement a mandatory vaccination scheme would be incredibly complex. It is extraordinary therefore that in the second article, Cheadle and Gray lambaste the Human Rights Commission for seeking clarity on what they themselves claim to be a complex legal issue. “It beggars belief that, given what we have set out above, that the Human Rights Commission, which ought to know better, should enter the fray,” they say. This is the kind of fist-pounding denial of ambiguity that PANDA has criticised before – the sense that the public cannot handle the truth, that questions cannot be tolerated and that everyone must simply shut up and get in line. It goes without saying that the Human Rights Commission has an obligation to take on cases that turn on controversial issues of human rights and that attempts to interfere with its work are reprehensible.
Then there was another debate of interest that took place last week. Again a lawyer was paired up with a public health official to talk up mandatory vaccination. Dr Abdool Karim and Justice Edwin Cameron, a former Constitutional Court judge, discussed the connection between human rights and the pandemic during a webinar hosted by Maverick Citizen editor Mark Heywood on 24 August 2021. PANDA has previously written about Daily Maverick’s war on truth.
The webinar started off looking back at what the panel had learnt from the HIV/AIDS pandemic and the impact of human rights on that pandemic. Compulsory testing, the state’s delay in implementing treatment and medical discrimination in general were all decried – and rightly so. Then the panel moved onto the Covid-19 pandemic, and as if the panel had undergone a cranial metamorphosis, agreed with a wide array of proposed infringements of human rights vis-à-vis the present pandemic that they had just decried in relation to HIV/AIDS!
Before we get into the technicalities of the law, let’s just make a few things clear:
- Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and the disease that is often the result of having been infected by this virus, coronavirus disease (COVID-19), are both very real;
- Some people get very sick from Covid-19 and indeed some people die as a result of it;
- Vaccines, in general serve a worthy purpose and have assisted in the advancement of medical science and of mankind;
- This article has been co-authored by attorneys and advocates who are members of PANDA and collectively have decades of experience. We choose to remain anonymous given the reprisals that PANDA members and other members of the profession have suffered to date.
The Legal Analysis
The following is our uncontroversial point of departure: The administration of a vaccine (any vaccine) is a medical procedure. In order for a medical procedure to be administered, South African law and medical ethics guidelines require that the patient gives informed consent. This is also a basic requirement of international law as set out in the Nuremburg Code, the Siracusa Principles, the International Covenant on Civil and Political Rights, the Universal Declaration on Bio-ethics and Human Rights, the Oviedo Convention – the list is endless and the point is simply that medical procedures cannot be administered to people who were not properly informed about the procedure and its risks and who voluntarily consented to the procedure.
Coercion can never result in informed consent and informed consent is necessarily absent in a mandatory vaccination paradigm. As a consequence, such schemes are medically unethical. This does not, of course, mean that they are unconstitutional.
In South Africa, no human right is absolute. Any right in the Bill of Rights may be limited in terms of section 36 of the Constitution. The wording of section 36 is available here. In essence, a right may be limited by a law that applies to everyone provided the limitation is reasonable and justifiable in an open and democratic society taking into account five listed factors.
Our Constitutional Court has recognised that these five factors do not form an exhaustive list or automatic checklist. An overall assessment is performed to determine the proportionality of the limitation.
How is a Right Limited?
The Constitutional Court has also held that a right cannot be taken away altogether under the guise of limitation and that any right must be limited as little as possible.
Because rights can only be limited by a law of general application, Parliament would need to pass a law providing for mandatory vaccination. A mandatory vaccination scheme could not be implemented under the Disaster Management Act – even though employers are currently trying to do this under the Department of Labour’s Direction. This is because the rights to life and bodily integrity can never be limited by any law invoking a state of emergency or any regulations passed under such a law. In our view, this applies to a state of disaster which is, in this regard, indistinguishable from a state of emergency.
Because our society is open and democratic, as a minimum, any law imposing a mandatory vaccination scheme would need to be subjected to an extensive public participation process, probably require a referendum and the science would need to be presented and debated openly.
Nature of the Rights being Limited
The first of the five relevant factors is the nature of the right being limited. Cheadle and Gray reference only the right to bodily integrity and the right to freedom of religion, belief and opinion. However, there are also other rights that are impacted. Firstly, the right to equality which prohibits the state from unfairly discriminating directly or indirectly against anyone on one or more grounds, including religion, conscience and belief. It should be noted that indirect discrimination by the State is prohibited and this would cover the State sanctioning a vaccine dompas for employment or vaxpasses for restaurants etc. On the topic of passes, the right to privacy is also impacted. This was a hotly contested aspect of the HIV debate with the law coming down on the side of the right of individuals not to be required to disclose their HIV status, including in the context of employment. Thirdly, the right to human dignity is impacted by being forced into a medical treatment. Other rights can conceivably also be impacted depending on the circumstances.
The right to bodily integrity deserves further consideration. This is a very encompassing right in our Constitution. It is the right to bodily and psychological integrity including (but not limited to) the right not to be subjected to medical or scientific experiments without your informed consent. The suggestion that the Covid-19 vaccines are experimental is sometimes seen as controversial. In a legal interpretation setting there is no doubt that they are experimental.
None of the Covid-19 vaccines presently in use in South Africa have been finally approved in South Africa and are all being used on an emergency use authorisation basis. None of the vaccines have been administered for more than ten months and therefore no data exists on the long-term side effects and long-term efficacy. Moreover, the right to bodily integrity is not limited only to experiments and clearly encompasses any medical treatment.
It is also evident that South Africans are not being properly informed of the experimental nature of the vaccines or all of the risks that they incur. Indeed, there is a concerted effort on the part of the State, medical schemes and the Media to downplay the risks.
Importance and Purpose of the Limitation
The second factor to be taken into account is the importance and purpose of the limitation. Cheadle and Grey reckon that the purpose is firstly
“to secure, through Covid-19 vaccines, protection against death and severe disease and to prevent further infections, thus reducing the risk of ongoing mutations of the virus into variants of concern that may impact on vaccine efficacy.”
Assuming the accuracy of data provided by the vaccine manufacturers, the vaccines have demonstrated efficacy in reducing deaths. The science shows an average absolute risk reduction of the Pfizer vaccine of around 1%. Quite how long this effect may last is more controversial. Israel and the United States concur that efficacy wanes after 6-8 months, much like the flu vaccine.
There is currently insufficient evidence for the contention that the vaccines reduce transmission. The vaccines clearly do not prevent transmission and a recent study concluded that, “We find no difference in viral loads when comparing unvaccinated individuals to those who have vaccine “breakthrough” infections. Furthermore, individuals with vaccine breakthrough infections frequently test positive with viral loads consistent with the ability to shed infectious viruses.” This is devastating evidence against mandatory vaccination, because it means that vaccinated people are just as likely to infect others as unvaccinated people. Interestingly, another study found that vaccinated people carried viral loads more than 250 times higher than those carried by recovered individuals. In a court of law, convincing evidence will be required to justify the limitation of fundamental rights and that evidence simply does not exist at this point in time.
There is also currently no science to support the contention that the deployment of vaccines during a pandemic reduces the risk of mutations. In contrast, evolutionary pressure among unvaccinated people is towards less lethal, more transmissible strains, and recovered individuals enjoy immunity that is much broader than vaccine-induced immunity and therefore more resistant to immune evasion. A “leaky vaccine” that does not prevent transmission may actually encourage the mutation of more dangerous variants. We have seen this with superbugs that have developed drug-resistance in hospital settings.
This leaves Cheadle and Gray with what they say is the most important purpose of the vaccine:
“Most importantly, Covid-19 vaccine roll-out will limit fatalities and the seriousness of the infection. That in turn relieves the intensive care facilities in hospitals, protects healthcare workers, enabling them to answer the needs of others with intensive care needs who otherwise may have been turned away. A more compelling public health purpose is hard to imagine – more than sufficient to outweigh the deeply personal nature of the rights.”
In other words, the population should be forced to be vaccinated so that the pressure they say intensive care facilities are under is relieved. To be clear:
- There is no sound Constitutional interpretation that infers on the State a right or an obligation to prevent its citizens from dying of a virus they chose not to protect themselves against.
- The vaccines do not prevent infection or transmission and there is established science suggesting they also do not reduce transmission. This means that cases will not be reduced by the vaccine and we see this in practice in many places in the world, including Israel.
- Because the vaccines do not prevent infection or transmission, they cannot eliminate Covid-19. It is likely that all susceptible people will, over the course of their lifetime eventually be infected notwithstanding vaccination.
- Our healthcare facilities have not been overrun by Covid-19 cases to date. During the first wave, South Africa paid for white elephants in the form of emergency hospitals that were never needed and that we have coped without in two subsequent waves. Countries like Sweden, who followed pre-Covid pandemic response procedures (that excluded lockdowns and mask mandates) had no excess death.
- For recovered individuals and the healthy young, the vast majority of our population, the risk of Covid is so low that any burden on health resources is de minimis.
- In any event, in a democracy the healthcare system needs to adapt to reality before our fundamental freedoms must adapt. The State has a Constitutional obligation to provide healthcare and the argument that we should all be vaccinated so that intensive care facilities can be relieved is a nonsense argument in law. If more intensive care facilities are required, they must be built.
The nature and extent of the limitation
Cheadle and Gray further argue that:
“the extent of the limitation is a prick on the arm for free. The relation between the purpose of vaccination and the limitation is demonstrably clear – it is to end the pandemic and limit the harm in between. Physical distancing and masks, although effective in restraining the transmission of the virus, have not constituted less restrictive means to end the pandemic or limit the serious effects of infection in the way that vaccination has.”
Leaving aside the lack of scientific evidence that lockdowns or mask wearing have had any impact whatsoever on the disease course in any country on our planet, the suggestion that the full extent of the limitation on rights is just “a prick on the arm for free” is extraordinary and abhorrent! Just a little prick? Perhaps in the same way that censorship is just a little smudge or detention without trial is just a little holiday!
Quite aside from the fact that international and national laws recognise compulsory medical treatments as serious infractions on human rights, the vaccines carry serious risks, including death. In the United States, healthcare providers use the following documents when administering the Pfizer and Jansen vaccines. Amongst other potential side effects are severe allergic reactions, increased risk of heart inflammation, facial drooping, blood clotting and Guillain Barré syndrome. More adverse events have been reported to the US government’s vaccine adverse events reporting system in relation to the Covid-19 vaccines than have been reported in the last 31 years from all other vaccines put together. The story is the same in the UK and in the EU. In addition, the latest studies show that the efficacy of the vaccine wanes, with the result that countries like Israel and the US have decreed that bi-annual vaccination will be required to stay current thereby exposing patients not just to a little prick but to hundreds of pricks (each one carrying a risk) over a lifetime. Moreover, because the vaccines do not stop transmission of the virus and because animals can catch and transmit the virus, there is no conceivable end to endemic Covid.
Cheadle and Gray again:
“Vaccines have been remarkably successful in eradicating infections and deaths from diseases such as smallpox, poliomyelitis, measles and meningitis.”
Who can disagree, but this statement is very misleading. The vaccines against these diseases are not mandated. You do not require a TB vaccine to keep your job. Schools can request certificates of vaccination but there is no consequence for a child that does not have a certificate. The vaccines that are used against these diseases have been in circulation for decades and their efficacy and safety is without question. The mRNA vaccines deployed for Covid-19 in South Africa are a novel technology that has never been used in a vaccine application before and has extremely limited application in any treatment. There have been a number of surprises in their application, including the fact that spike protein production that was supposed to occur only in the deltoid muscle in the patient’s arm has been shown to occur throughout the body, notably in the ovaries and testes. Unlike the vaccines for these other diseases that are termed “perfect vaccines” because they stop infection and transmission, the Covid-19 vaccines are “leaky vaccines” that do not stop infection or transmission. The prospect therefore of eliminating polio, for example, with the perfect Polio vaccine are credible, whereas Covid-19 cannot be eliminated with the leaky Covid-19 vaccines.
There are precedents for vaccines having been deployed on a grand scale only for the vaccines to be withdrawn after causing illness and death. Therefore, the fact that certain other vaccines have been proven to be safe and efficacious has no bearing on the safety or efficacy of Covid-19 vaccines.
The relation between the limitation and its purpose
All of the above, must of course be placed in the proper context of how evil the virus is that requires this limitation of rights.
Anecdotally, we now all know someone who has died with Covid-19 if not from Covid-19 and with the media focus on this disease, many of our decisions are motivated by fear. The courts cannot operate on anecdotes and must look at evidence and facts. The fact is that the infection fatality rate of Covid-19 is about the same as for flu. The WHO puts the average infection fatality rate at 0.15% but the virus affects older people far more severely than the young. Here is the average survival rate by age:
|AGE||INFECTION SURVIVAL RATE|
Based on Discovery’s number of 80% of the South African population having been infected, South Africa’s median IFR is 0.12%, one of the highest in Africa. In the improbable scenario that every “excess death” in South Africa was caused by Covid-19, the survival rate is still 99.7%.
“Long Covid” is not unique to this virus. Viruses are a part of living as social animals. All viruses can cause some long-term impacts and the “Long Covid” consequences have not been sufficiently studied at this stage to inform Constitutional limitations. At the end of the day, we fail to see how the limitation of citizen’s rights can be proportional to this virus given the survivability.
Less Restrictive Means
The final factor to be considered is whether or not there are less restrictive means of achieving the purpose. The Constitutional Court has held that the limitation must be as unobtrusive as possible.
Children are not at risk from Covid-19 and face higher risks from vaccination. The vast majority of the victims of Covid-19 are older people and people with identified comorbidities who can be protected through targeted measures rather than a shotgun mandatory vaccination approach. Reducing obesity rates, addressing fear and anxiety disorders and protecting older people would make a significant impact on the course of the disease.
It is also important to note that there is no longer any scientific doubt that the immunity people who have recovered from Covid-19 have is more robust and lasts longer than vaccine immunity. There is no scientific basis to believe that recovered people will not be immune at least for years to come. Up to 80% of our population is already immune to the disease and the science shows that the immunity they have is better than they might get from a vaccine. Children without comorbidities are not at risk and do not need to be vaccinated. An increasing percentage of the population is voluntarily vaccinating. These factors reduce the percentage of the population that requires vaccination to levels that can easily be attained without mandating the vaccines.
Incontestably, the vaccines do not prevent infection or transmission with the result that they will not halt the spread of the virus. There is not sufficient evidence to show that the vaccines reduce transmission significantly and increasingly the data suggests that they do not materially reduce viral load or case numbers. On the other hand, it is a fact that the medium and long-term risks that the vaccines pose have not been determined and that initial reports of adverse events reported around the world are sufficient to make a case that the vaccines may not be as safe as initially assumed. Simply put, the evidentiary burden that would need to be met in a court of law in order to indicate that compulsory vaccination is a reasonable and justifiable limitation of fundamental human rights cannot be overcome at this stage.
There is also a question of the precedent that would be created. If civil liberties can be curtailed so drastically for a virus that has an infection fatality rate of 0.1%-0.2%, there are a whole host of risks that we face, including from other viruses, that would qualify. The cumulative impact of these limitations would be significant. Combined with the prospect of vaccine passes being used for other things than Covid-19 control, the limitation could effectively result in the elimination of certain rights (like dignity and equality) for a large percentage of the population that has indicated an unwillingness to compromise their bodily integrity with the vaccines.