MTHWAKAZI INDEPENDENT

Dramatic changes have taken place to how society operates, thanks to the Covid-19 pandemic; Covid-19 has challenged, tested and transformed nearly every facet of our life, and constitutional jurisprudence has not been spared. Some people have raised reservations over what they perceive to be unwarranted restrictions on their human rights and liberties as local and national governments have imposed various restrictive measures such as lockdowns, mask mandates, bans on gatherings and shutdowns of “nonessential” activities. Governments have justified these moves as necessary and appropriate to slowdown the spread of the virus and reduce pressure on public health facilities, and even more important they argue these measures protect vulnerable citizens who, for reasons not of their choice, cannot be vaccinated.

Human rights are those rights that all people hold simply by virtue of existing, whoever they are and wherever they live. The UN’s ground breaking 1948 document, the Universal Declaration of Human Rights, outlines these rights, including the idea that all people have the right to freedom of opinion and expression, and the right to freedom of religion:

1. The right to life (Article 2 HRA) – covers the duty to protect life and failures to protect life.
2. The right to private and family life, home and correspondence (Article 8 HRA) – covers issues including autonomy, wellbeing, and protecting private information.
3. The right to freedom of thought, conscience, and religion (Article 9 HRA) – covers issues including the right to hold and act on strongly held beliefs.
4. The right to be free from discrimination (Article 14 HRA) – covers issues such as the potential for employees to be discriminated against for not having the vaccine due to personal or medical reasons.

Civil liberties refer to the rights accorded to people under a country’s constitution or bill of rights, or other forms of legislation.

There is an overlap between civil liberties and Human rights; the former focuses mainly on freedoms to do what one wants to do, the latter also includes rights to be protected from harm (Mark Hall, 2021).

Citizens wary about vaccine requirements breaching their rights may be referring to both types of concerns—the freedom to refuse vaccination for personal, ideological, or religious reasons, and the right to be protected from harm resulting from side-effects.

While understandable, hesitancy to vaccination risks jeopardising public health. Fear of side-effects heads the list of concerns among the wary (evidence shows these vaccines to be safe with a few adverse drug reactions recorded to date). There is also distrust of public authorities, the healthcare system and the pharmaceutical industry. The unprecedented rapid development and approval of the vaccines also contributes to hesitancy.

A recent study indicates that vaccine acceptance in Europe varies between 44-66 per cent; it is even lower in Africa where only 2 percent of the population have had a first dose of the vaccine. These figures may fall short of what is required to achieve the level of population immunity (herd immunity) that would enable us to open up our societies again.

Governments are making efforts to encourage citizens to get immunised as a civic duty, but they have also left open targeted vaccine mandates as a backup option. The French government, for instance, has sought to make vaccination virtually unavoidable with rules and mandates, in the UAE students returning to classrooms will require proof of vaccination, and companies including Google have started compelling employees to get jabbed before returning to the office.

In this article we explore if there is a possibility of employers requiring public and private employees to have Covid-19 vaccine without breaching the human rights law.

Mandatory vaccination does interfere with personal integrity but may be necessary. 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, such as children under age 12, and those from poor countries who have still to access the vaccines or to people who did get vaccinated but develop breakthrough infections.

Consideration need to be taken of the fundamental right of everyone to be protected from Covid-19 – particularly at a time when the Delta variant continues to proliferate primarily among the unvaccinated.

In ethics, there is the notion that you can do things as long as you do not cause harm to other people. Arguably, when you do not get vaccinated, you are putting others in harm’s way.

As alluded to earlier, compulsory vaccination is an interference with the human right of bodily integrity, which is a part of the right to private life enshrined in the Universal Declaration of Human Rights as well as in the European Convention on Human Rights. However, this right is not an absolute; mandatory vaccination can be justified, but context is vital.

In September 2021, the Ontario Human Rights Commission (OHRC) concluded that COVID-19 vaccine mandates were “generally permissible” as long as those with legitimate exemptions were able to be “reasonably accommodated.”

When it comes to medical interventions, including vaccination, free and informed consent is the main rule within international human rights law. This rule is, however, not absolute. In Solomakhin v Ukraine, the European Court of Human Rights (the Court) held that mandatory vaccination interferes with a person’s right to integrity protected under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless, the Court concluded such interference may be justified if considered a ‘necessity to control the spreading of infectious diseases’ (para 36).

The pre-Covid-19 European Court of Human Rights (ECHR) decision concerning the implementation of a mandatory childhood vaccination programme in the Czech Republic will no doubt attract attention from governments as they explore the possibility of mandatory Covid-19 vaccination. The Czech Republic government’s compulsory vaccination programme required children to be vaccinated against nine diseases. The state imposed financial penalties and children who had not been vaccinated were excluded from pre-school.

Six individuals penalised for non-compliance took the matter to court; the complainants alleged that the mandatory programme was a breach of the ECHR. In particular, they argued that it was a breach of Article 8 – right to a private life, and of Article 9 – right to freedom of thought, conscience and religion.

The ECHR judgment in Vavřička and Others v the Czech Republic [2021] ECHR 116 has attracted attention across the continent as it raises the spectre for public bodies and private employers legally requiring that employees be vaccinated.

In its findings, the ECHR held that the Czech Republic national vaccination programme did interfere with the claimants’ rights to a private life. However, on the facts, it decided that the interference was justified as a proportionate means of achieving a legitimate aim. In particular, it held that: (1) the Czech Republic had a legitimate aim in its desire to protect its population against serious disease; (2) in the circumstances, the relevant vaccinations were known to be safe and effective; (3) the vaccination policy was proportional – the fines were not excessive and non-vaccinated children were not prevented from attending an educational setting once they reached the compulsory school age, and (4) for their Article 9 claim, the claimants relied on freedom of thought or conscience rather than religion. In the circumstances, the ECHR found that the claimants’ beliefs lacked sufficient cogency to be protected under Article 9.

Another case of note is that brought by 30 public and private Greek healthcare professionals who sought to have the court suspend the Greece government’s mandatory vaccination programme of medical professionals. In its published press release the Strasbourg court decided not to grant interim measures to suspend the compulsory vaccination programme of medical professionals in Greece.

The court usually issues interim measures when the applicants can show that they face irreversible harm. If the measures are granted, the court orders the respondent governments to freeze the situation until it has a chance to deal with the substance of the case.

No reasons were proffered by the court for its decision not to halt mandatory vaccinations in Greece, indicating that either the court did not consider that compulsory vaccination will lead to irreversible harm, or the consequences of refusal to be vaccinated are not irreversible. In both cases, the court is unlikely to prevent the member states of the Council of Europe from implementing policies similar to the Greek one (Dzehtsiarou, 2021).

To date the court judgements seem to be emboldening governments that it could be possible to mandate Covid-19 vaccination without breaching human rights law. Deliberating on human rights law is not simple, governments will need to be specific on their measures.

Furthermore, governments will need to prove if health risk does exist; if it does, then life, health and bodily integrity of the patients are also protected by human rights law and they might prevail.

If taken, the exceptional decision to mandate the Covid-19 vaccination would be justified by the situation’s exceptional gravity. There is no evidence from available data to suggest that we are even remotely close to achieving herd immunity, let alone the eradication of the disease. What is evident though is that vaccines are only effective in stopping severe illness, reducing hospitalisation but not the infectiousness of the virus. There is evidence too of deaths even among double vaccinated in specific population groups.

In our conclusion, we hold the view that on the balance of probability the compulsory Covid-19 vaccination is highly unlikely to constitute a violation of human rights, but the states will have to set out explicit parameters whereby a compulsory vaccination would be “necessary and proportionate” in the interests of health and safety, and if it was to ensure that the states were fulfilling their positive obligation to protect the right to life. The states will also need to allow for reasonable exemptions to avoid placing undue burden on individuals who cannot have the vaccination for specific justifiable reasons.