Mandatory vaccines: Where individual rights start and end

There is a school of thought that mandatory Covid-19 vaccination can be ethically justified if the threat to public health is grave, the confidence in safety and effectiveness is high, the expected utility of mandatory vaccination is greater than the alternatives, and the penalties or costs for non-compliance are proportionate – but others think differently. And with the country’s health minister recently announcing prohibition of services for all unvaccinated citizens beginning January 1, 2022, Public Eye News Editor, TEBOHO KHATEBE MOLEFI (PE), engaged the Assistant Director-Operations with South African Human Rights Centre of the University of Pretoria, LLYOD KUVEYA (LK), to weigh in on whether a general law or executive decisions mandating Covid-19 vaccination in Lesotho would not necessarily be a human rights infringement.

PE: Companies and governments are announcing new vaccine policies, requiring people to get vaccinated against Covid-19 in order to keep their jobs, go to the office, dine in restaurants, or attend indoor performances – isn’t this move a violation of people’s rights?

LK: The mandatory vaccination of employees and, in some cases, college students has been a source of huge debate and consternation since the Covid-19 pandemic deepened. States, companies and universities that have called for mandatory vaccinations are doing so in the interests of public health and concerns over reduction of productivity whenever people get infected.

States, employers and universities are trying to control and prevent the spread of the Covid-19 virus by insisting on people getting vaccinated. Their argument is that this is in the interest of the right of other people’s right to health. According to the International Covenant on Civil and Political Rights which has been ratified universally by states, human rights may be subjected to limitations depending on the exigencies of a situation of a public emergency.

Many states have declared the Covid-19 situation a state of public emergency which means certain rights may then be curtailed or derogated from. However, there are certain rights that may not be subjected to limitations. These include the right to life, right not to be subjected to slavery, etc. Of particular importance is the right to freedom and bodily security of the person and the freedom of thought, conscience and religion which may also not be derogated from.

While these rights may not be derogated or taken away, they may, however, be subjected to some limitations in terms of a law of general application.

For example, Section 36 of the South Africa Constitution provides that rights may be limited in terms of a law of general application and certain factors are considered for a right to be limited, including the nature of the right, importance of the purpose of the limitation, the extent of the limitation and whether there are less restrictive ways of limiting the right. (Section 36 of the South African Constitution says that rights may be limited by a law of general application that is ‘reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality’.)

The limitation must be reasonable and justifiable in a democratic society based on human dignity, freedom and equality. On the face of it, mandatory vaccinations may constitute violations of the right not to be subjected to medical or scientific experimentation without free and informed consent and also freedom of thought, conscience and religion.

An individual may indeed claim violations of these rights, but they can be subjected to a limitation analysis in terms of Section 36 of the South African Constitution as an example previously cited. The state, employer or university may argue that any person who does not want to be vaccinated based on those two rights will have to be subjected to occasional mandatory testing in the interests of public health. This may, therefore, constitute the limitation of these rights.

PE: Do such policies seem effective in persuading at least some unvaccinated people to get their shots?

LK: States, employers and universities are encouraged to inform, educate and persuade citizens, employees and students about the benefits and importance of being vaccinated and reassure people that vaccinations are not a form of physical experimentation to harm anyone, but to ensure that everyone enjoys the optimum form of health and prevent the spread of the Covid-19 virus.

Mandatory vaccinations may be counter-productive as some people may not trust or have confidence in a process which they are not sure of or which they are sceptical of. This is why there has been vaccination hesitancy and, in some cases, outright resistance to be forcibly vaccinated.

My recommendation is that the relevant authorities work with scientists and medical doctors to educate people about vaccines and their effects and endeavour to persuade at least 60 percent of the population to get vaccinated.

PE: But there has been controversy surrounding this. One of the most common arguments raised by dissenters is that vaccine mandates infringe upon unvaccinated people’s human rights and civil liberties. Do these arguments hold?

LK: Yes, these arguments do hold. I am of the view that vaccinations limit or reduce the severity of Covid-19 infections and that as many people as possible should get vaccinated to reduce or even prevent hospitalisations and deaths. This, however, will not stop people from claiming their constitutionally guaranteed human rights. They may claim these rights with the knowledge that they may be subjected to a limitation analysis.

PE: What concerns should business leaders and policy makers weigh as they consider implementing vaccine requirements?

LK: Policy-makers and business leaders must weigh the fact that people have the power and choice to invoke their rights and refuse to submit to mandatory vaccination. The South African president has always insisted that people will not be forced to be vaccinated, but has urged people to get vaccinated in the interests of public health. I would also urge people to get vaccinated in the interests of public health.

PE: Coming to rights, human rights and civil liberties are terms that are often used fairly interchangeably, how do we differentiate the two to better understand what we are talking about when we argue on infringement of people’s rights?

LK: These terms may indeed be used interchangeably. However, one may argue that human rights are broader in the sense that they will include first, second and third generation rights. This means human rights are more broadly going to include civil and political rights, economic, social and cultural rights and group rights like environmental and development rights. On the other hand, it is arguable that civil liberties are more limited to civil and political rights such as freedom of expression, association and assembly.

PE: A crucial point in the vaccine debate is that human rights give all people the right to be protected from harm. Covid-19 poses a major public health risk – not just to people who are unvaccinated by choice, but to those who cannot yet get vaccinated. How do you react to this in light of mandatory vaccination?

LK: This argument makes sense. The state has obligations to protect all people and ensure all people, including children, enjoy the maximum attainable standards of health.

PE: Do vaccine certificates/passes discriminate against the unvaccinated?

LK: When one has been vaccinated they receive vaccine certificates. In my view privately owned places, such as cinemas, restaurants, etc, have a right to require vaccine certificates before admission is granted.

However, those who are of the view they cannot be vaccinated on account of their religion may argue unfair discrimination and if they can prove their case, they may win the argument. The state would have to put in place a law of general application to enforce the requirement for vaccine certificates, but also have a proviso that those who have tested negative may be allowed access. Alternatively, a restaurant may have to create a section for unvaccinated and another for those who are vaccinated.

PE: Vaccine mandates and requirements do not inherently infringe upon people’s rights, particularly given the very real public health crisis that Covid-19 presents – would you agree?

LK: Vaccine mandates may infringe the rights identified in number above, but may be subject to limitations in the interests of public health. However, the two identified rights may not be taken away on basis of the public health emergency of the Covid-19 pandemic. They may only be subjected to reasonable and justifiable limitations. It’s a balancing act.

PE: All said, and simply put…Do mandatory vaccines violate human rights?

LK: Mandatory vaccines violate the two rights I have just mentioned, but they may be subject to limitations like having to be occasionally tested.