Unpacking the constitutionality of mandatory vaccines – Matthew Kruger

Matthew Kruger is a Research Fellow at the Helen Suzman Foundation. Kruger recently wrote a thought-provoking piece about mandatory vaccines – a topic sparking debate across the globe. His piece, as he describes it, is concerned with what strikes him “as the framework through which we’re considering this question – which I find extremely worrying for a number of respects.” The Research Fellow notes that he has no issue with vaccines, but rather the constitutionality of mandatory vaccines. – Jarryd Neves

Matthew Kruger on what drew him toward mandatory vaccinations:

I’ve written a number of pieces about Covid and the state’s response to it, since the beginning of April last year. I haven’t really written much about it since early March, and what drew me to this issue, I think, was what strikes me as just a continuation of what has been happening since the beginning. We are an extremely politically and ideologically diverse country. But what has struck me throughout, is the almost uniformity of response by individuals, corporates, NGOs, media and by political parties. There’s been a near uniform response – a kind of party line, so to speak – that has been followed.

I’ve made various written various pieces about that since the beginning. What struck me about this is that it seems, to me, to be taking up an especially dangerous form with the mandatory vaccines. It’s not so much the mandate or the proposed mandate itself. Let me make that clear. We can discuss the substance of that sort of decision, but rather the piece that I wrote is concerned with what strikes me as the framework through which we’re considering this question. I find that extremely worrying for a number of respects that I canvassed in that piece.

On whether it’s possible for someone to approach the Constitutional Court to defend against mandatory vaccines:

It would be a triable case – whether anyone would have the motivation or would move to do so is a separate question. I’ve previously written about what I term the silence of the Constitutionalists. For 18 months, we’ve had democratic power exercised by way of family meetings – about which we’re informed 24 hours before the event – rather than having these really complex, complicated issues debated in Parliament. Yet our vaunted civil society has almost turned a blind eye to all of this and whether they would engage on this issue, I’m not sure.

On why there would be silence on this issue:

I don’t think it’s a lack of courage. We have a lot of very impressive, hardworking and noble NGOs who focus on different issues. If your focus is on healthcare, children dying and open pit toilets, that takes up a lot of time. If your focus is on refugees who are being attacked or have been kicked out of homeless shelters because of lockdown regulations, that also takes up a lot of time. There are some organisations who focus explicitly on constitutional questions, the Helen Suzman Foundation being one of them. But perhaps what the last 18 months has revealed is that there’s space for more.

There is the space for organisations to exist in tandem with those other more socioeconomic focused organisations. It’s not enough just to do work that strives to alleviate suffering, that strives to promote socioeconomic goods. Those also have to take place within a larger constitutional framework, that has parliament, the judiciary and that has the executive. In very simple terms, there needs to be adherence to separation of powers and the rule of law. That’s under the guise of emergency for 18 months. This is not, of course, unique to South Africa. It’s happened almost everywhere. A sustained – and, I worry – permanent shift of legislative power, from your parliamentary side of your democracy to your executive side.

On what he would say to Adrian Gore and Piet Mouton:

Our corporates and our companies know how to lobby government. Perhaps they should encourage government to take the lead. Mr Gore, in his open letter, spoke about leading bravely. While that’s admirable, what we need is parliament to lead. – not the president or cabinet, parliament. We need parliament to take the lead on this question and not just on the question of mandatory vaccines.

The pandemic is not going away and there will be new viruses. We cannot operate under the Disaster Management Act indefinitely. We need legislation that is fit for purpose. We need legislation and much the same way as we have equality, environmental and domestic violence legislation. We need pandemic legislation. We cannot continue to operate under the Disaster Management Act and executive rule via a family meeting. This question is only coming up because parliament has failed in its duty to design a legislative framework that can deal with these questions.

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