Vaccines: State control denies constitutional rights in SA

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The South African government’s efforts to secure and roll out Covid-19 vaccines have been riddled with problems. When the world was abuzz with news of vaccine purchases, the nation’s leaders were worryingly silent. When plans were eventually revealed, the strategy seemed to be full of unknowns. South Africans have endured lockdowns that have used some of the strictest measures in the world, to contain the virus. A second wave, fuelled by a new variant, discovered by scientists in KwaZulu Natal far surpassed the first. With another winter approaching, experts predict a third wave of infections. Meanwhile, South Africans are left to piece together shattered livelihoods and wait anxiously for a vaccination. The Government has made many excuses as to why the rollout has had a glacial pace. Private institutions have offered their facilities and services but the government insists on absolute control. Paul Hoffman of Accountability Now points out that according to the Constitution, “efficient, economic and effective use of resources must be promoted”. Surely the time has come for the government to admit that, at the very least, it has failed to ensure effective use of resources? – Melani Nathan

Government must urgently take cognisance of a constitutionally compliant vaccine roll-out in South Africa

By Paul Hoffman* 

The slow start to the vaccine roll-out is worrisome. The desire of the government to exercise hegemonic control of all the levers of power that have bearing on vaccination of the population has no place in the constitutionally compliant rolling out of vaccines as quickly as is possible.

In any constitutional democracy whose watchwords are openness, accountability and responsiveness, the rolling out of vaccines to inoculate the population against the viral pandemic sweeping the planet must take proper cognisance of the constitutional framework within which the roll-out is required.

Paul Hoffman Accountability Now
Paul Hoffman

It is trite that the state is obliged to respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights. In South Africa, we have a system of law in which there is the horizontal application of the Bill of Rights to private individuals and entities without involvement of the state.

Among these guaranteed rights are the rights to life, dignity and bodily – as well as psychological – integrity. The right to a profession/trade/ occupation and the right to access to healthcare loom large among the considerations that must be taken into account when considering the various options for rolling out vaccines as they become available to the government from drug manufacturers. These Big Pharma firms have chosen to supply only governments, both in the interests of fairness and in order to secure viable guarantees of adequate compensation funds (lest vaccines go wrong) as a condition of sale.

At a practical level, it needs to be remembered that everyone in SA is entitled to administrative action that is lawful, reasonable and procedurally fair under section 33 of the Bill of Rights as fleshed out by the provisions of the Promotion of Administrative Justice Act.

A further provision of the Constitution is also relevant. Under section 195(1) the public administration must be governed by certain values and principles. Among them is the principle that “efficient, economic and effective use of resources must be promoted”.

When it comes to finding the facilities, skills and wherewithal to roll out vaccines, the resources of the private sector are relevant to efficiency and effectiveness. Hospitals, medical personnel, clinics and other infrastructure in the private sector are resources that are fair game in any constitutionally compliant rolling out of vaccines to the population at a rate and in the quantities that are needed to achieve herd immunity. This will help save the lives of the vulnerable and to enable the economy to recover from the stunting effects of the lockdowns that SA has endured patiently. An efficient and effective vaccine roll out demands early and meaningful engagement with all resources that can be used to achieve population vaccination.

The slow start to the rollout is worrisome. The disengagement of medical aid schemes troubles the thoughtful members who see the advantage of bringing the resources of the private sector to bear in a manner that is respectful of the protocols put in place to ensure fairness and equity in the process. The desire of the government to exercise hegemonic control of all the levers of power that have bearing on vaccination of the population has no place in the constitutionally compliant rolling out of vaccines as quickly as is possible.

The principles which ought to inform decision-making have been discussed by the Constitutional Court in the Rail Commuters case. In that matter responsibility for the safety of rail commuters fell into disrepute due to a disagreement between Metrorail and SAPS. The former regarded safety against crime as a police matter, while the latter regarded it as a railway concern. Here is how Justice Kate O’Regan, writing for a unanimous court, unpacked the process involved in coming to a reasonable decision in our constitutional dispensation:

“[88] What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty-bearer and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave the threat to fundamental rights, the greater is the responsibility on the duty-bearer.

“Thus, an obligation to take measures to discourage pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb. A final consideration will be the relevant human and financial resource constraints that may hamper the organ of the State in meeting its obligation. This last criterion will require careful consideration when raised. In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bold assertion of resource constraints. Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state, will need to be provided. The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.”

These wise words of our highest court are pertinent to the decision-making processes currently under consideration in relation to the vaccination of the population of SA. It is surely not beyond the wit of government and the private sector healthcare leadership to come up with a roll-out plan that satisfies the law, the people and the Constitution in the social, political and economic context that prevails due to the Covid pandemic and to the various lockdowns that have been put in place from time to time in an effort to counter the severity of the impact upon the vulnerable in a way that does not stifle economic activity. A rapid, effective and efficient rolling out of vaccines is indicated.

The ability of the state to achieve this on its own, or even to control the process of acquiring, storing, distributing and administering the vaccines in an effective and efficient way, as is required by section 195 of the Constitution, is open to question. Now is a good time to set aside the desire for hegemonic control of all levers of power in society and to seek cooperative engagement with the private sector healthcare professionals and their facilities in order to radically improve the rate at which the vaccines are being made available and are being administered to the people of South Africa.

  • Paul Hoffman SC is a director of Accountability Now. 

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