When President Cyril Ramaphosa addressed the nation in mid-March 2020 with the announcement that the whole of South Africa would enter a three-week lockdown on 27 March, fear of the ‘novel’ coronavirus and an inherent trust that his decision was guided by well-intentioned expert opinion led citizens to, for the most part, accept this unprecedented show of power. However, as lockdown dragged on (and on) past the initial three weeks and measures such as the ban on tobacco and the sale of cooked chicken defied logic, this trust suffered a drastic decline. The absence of transparency further worsened South African citizens’ understanding of these arbitrary pandemic-related interventions. Earlier this week, more than two years later, the Health Justice Initiative launched litigation in the Gauteng High Court in Pretoria, in an effort to make expert Covid-19 pandemic advice and decisions public. According to the HJI, while litigation should always be a last resort, “it is necessary as the HJI’s requests for information have fallen on deaf ears”. – Nadya Swart
The Health Justice Initiative approaches courts to make expert Covid-19 pandemic advice and decisions public
Today, civil society organisation, the Health Justice Initiative (HJI), filed papers at the Gauteng High Court in Pretoria, in an effort to make expert Covid-19 pandemic advice and decisions public. The matter centres on access to information that furthers transparency and accountability, which will set a rigorous precedent for future pandemics. Court papers and fact sheet can be accessed here: healthjusticeinitiative.org.za/pandemic-transparency.
The respondents are the Minister of Health, the Information Officer of the National Department of Health, the Minister of Co-operative Governance and Traditional Affairs, the Minister of Sports, Arts and Culture, and the South African Medical Research Council.
The Minister of Health and the National Coronavirus Command Council have been guided by the ‘minister’s advisors’ who either serve on various Ministerial Advisory Committees (MAC) or provide advice outside of formal MAC structures.
The HJI is seeking relief from the courts in order to access information on who the expert advisors are, what advice they provided and how this informed governments’ decision-making process. The HJI also wants to establish if there are any instances where expert advice was not followed or deviated from. Additionally, the HJI is seeking clarity on the decision processes and rationale for vaccinating elite athletes, sports administrators and others ahead of their age cohort through the specially set up Sisonke vaccine programme.
Dr Marlise Richter, Senior Researcher at the HJI explains that, “Although we are happy that President Ramaphosa committed South Africa to Covid-19 interventions based on ‘science and evidence’, at the same time the public needs to know on what evidence, and on whose advice, government decisions and interventions were based. The public has a right to know whether the recommendations of any or all of the expert advisory committees were considered and followed. And, if not, what was the rationale for departing from it.”
The management of the current pandemic and also future pandemics require ethical and evidence-based decision-making based on accepted public health principles and research in the context of scarce resources. ‘Pandemic readiness’ requires that clear and transparent processes are put in place to ethically and fairly allocate scarce public goods to those who most urgently require it.
“We believe that government departments and all research and regulatory bodies should have open decision-making processes. Where ‘queue jumping’ in accessing Covid-19 vaccines has happened, the public has a right to know how such authorisation came about and what reasons were provided for deviating from public health and ethical guidance on prioritisation. There was a national policy of vaccinating per age cohort, which was not followed, to benefit people other than healthcare workers in a time of scarce vaccine supplies,” says Richter.
Although the HJI made numerous requests for information to all parties through the Promotion of Access to Information Act (PAIA) from mid-2021 onwards, the South African Health Product Regulatory Authority (SAHPRA) is the only organisation that responded to the HJI and provided all requested information. The remaining respondents have either ignored the formal requests or provided insufficient information.
The HJI is seeking:
1. The names of all the minister’s advisors.
2. Copies of all expert advisories and recommendations related to:
- vaccinating people with co-morbidities;
- vaccine selection and use;
- priority group eligibility criteria, including any relevant departmental frameworks; and
- the non-use of the Covishield (AstraZeneca-University of Oxford) vaccine and the details surrounding its sale or donation.
3. Copies of all requests and regulatory/ethics/other approvals to permit so-called ‘special groups’ to proceed with vaccination ahead of their respective age cohorts in 2021, including under the Sisonke programme. Special groups include government officials and certain sports teams and administrators.
Litigation should always be a last resort. However, it is necessary as the HJI’s requests for information have fallen on deaf ears. We urge the respondents to publish all relevant information, as it is a matter of public importance. There should be no secrecy in a pandemic.
Note: This matter (Case 2) follows the HJI’s February 2022 court application against the Minister of Health and Department of Health Information Officer to make public all Covid-19 vaccine procurement agreements (Case 1). That matter is still before the courts. For court papers and updates on these cases, visit www.healthjusticeinitiative.org.za/pandemic-transparency.
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