The law and vaccinations: Politicians constrained by what constitution allows them to do

There is a debate raging in the corridors of power worldwide concerning the question whether or not to make the Covid jab compulsory for all.

In authoritarian regimes, it is possible for all-powerful politicians to decree that all shall be vaccinated no matter what.

That is not the position in South Africa. Our system of government, known as constitutional democracy under the rule of law, posits the constitution as our guiding light. Politicians are not allowed to decide as they please (as in the old SA when apartheid-style parliamentary sovereignty was the order of the day).

Nowadays, politicians are constrained by what the constitution allows them to do. Any conduct or (new) law that is inconsistent with the constitution is invalid and may be struck down, if impugned in litigation that reaches the Constitutional Court.

So, in SA the question is whether or not compulsory vaccination against the scourge of a virus which has the world in its grip is a step that can be regarded as consistent with the constitution.

To answer the question, we have to consider the principles according to which we are governed.

The rule of law is supreme and it requires of government that a legitimate purpose of government is served in decision-making on such important a topic as making vaccination mandatory.

Those who govern are meant to act openly, accountably and responsively. The state itself must respect, protect, promote and fulfill all of the various rights guaranteed to all in the Bill of Rights.

The rights that are directly relevant to any decision-making around vaccines include the right to life, to dignity, to bodily and psychological integrity and to access to healthcare.

More indirect rights, such as freedom of association, freedom of movement and residence, freedom of trade, occupation and profession, assembly, demonstration picket and petition are also implicated in the decision-making process.

The right to bodily and psychological integrity expressly includes the right to security in and control over one’s body.

Nobody may be subjected to medical or scientific experiments without their informed consent. It is important to note that all rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In the process of limiting rights, the following factors may be considered:

• The nature of the right;
• The importance of the purpose of the limitation;
• The nature and extent of the limitation;
• The relation between the limitation and its purpose; and
• Less restrictive means to achieve the purpose.

So while anti-vaxx lobbyists and those hesitant about taking the jabs required may use the nursery rhyme My body’s nobody’s body but mine, they are unlikely to persuade the Constitutional Court that mandatory vaccines are an unjustifiable limitation on their rights, or not allowed in terms of the limitation section of the Bill of Rights from which the bullet points above have been taken.

On a more practical and less legalistic basis, it is plain that those who wish to travel will have to show the airlines that they are either vaccinated or infection free.

Many workplaces, such as those in the healthcare and food sectors, will not be able to function properly if they are constantly at risk of an outbreak of the pandemic in their physical spaces.

Many vaccinated people may be put at increased risk if the unvaccinated are allowed to mingle freely with them.

Those who have allergies to vaccines or religious objections to taking them will be obliged to lead isolated, if not solitary, lives if the mandatory vaccine system is applied in South Africa.

The wisdom of Solomon is needed.

– Hoffman is a director of Accountability Now