The Current Implementation of Vaccine Roll Out Is Probably Unlawful & Unconstitutional

When the vaccine roll out plan was announced, it was warmly welcomed by many as it seemed logical and sagacious. Although there was a loud cry prior to the first batch arriving that the government has been slow in acquisition of the vaccine, it was nonetheless welcomed and seen as a giant step in an effort to fight the ongoing pandemic. This, reasonably so, brought hope and optimism for people and businesses alike. This re-born hope and optimism is, however, dying a slow death as in almost 2 (TWO) months since the arrival of the first batch of vaccines very few people (healthcare workers) have been vaccinated. There have been media reports that the government is behind in its target and it is increasingly becoming unlikely that the targeted number of people will be vaccinated before the end of the year, 2021. Considering that the roll out plan is such that only healthcare workers are being vaccinated (at this point in time), this rigid roll out plan imperils the health and lives of millions of other vulnerable people – who genuinely need to be vaccinated as soon as the circumstances permit. Various experts inclusive of the Health Minister himself have been warning of the looming Third Wave of infections. Further, the Minister of Health and other experts have been preaching the need of delaying the Third Wave. Amongst other mechanisms of achieving this delay would be an effective and efficient approach in administering the vaccine doses – i.e. the more people vaccinated, the less likelihood of fast contraction and transmission of the virus. As we have seen with the previous 2 waves of infections, the repercussions of the peak of infections are devastating – from whichever angle one looks at it. As such, it is imperative that a vigorous and a focused approach be adopted so as to delay or, even better, circumvent another wave.

As stated, the first group in terms of the government’s vaccine roll out plan is the health workers. Even with this one group, there still is a long way before everyone is vaccinated. This means, the turn for every other following group in the plan is being pushed further down in terms of when they will get the vaccination. A natural ramification of this is that the intended herd immunity will only be reached many months or years later than initially hoped for. Naturally, lives will remain at risk and many will be lost; the economy will continue to shrink; jobs will be lost, etc. It is therefore, at this juncture, opportune to consider the rights as enshrined in the Constitution of the Republic of South Africa, 1996, which are directly threatened by the slow progress insofar as the implementation of the vaccine roll out plan is concerned.

Right to Dignity

Section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected. Any unreasonable delay in providing medical treatment or vaccination is an encroachment to this right as such conduct undermines the dignity of the concerned person or group of persons.

Right to Life

Section 11 provides that everyone has the right to life. A delayed or denied vaccination, in view of such a proven lethal virus, is a direct violation of this right. In its very first case heard by the Constitutional Court, the Makwanyane case, the court emphasised and rubberstamped the gravity of this right in particular. It stated that the deprivation of this right directly leads to deprivation of every other right – i.e. every right that one is able to enjoy germinate from one’s ability to enjoy this right.

Right to Freedom and Security of the Person

In terms of Section 12, we all have the right to freedom and security of the person which includes not to be treated in a cruel, inhuman and degrading manner. This right, it can be argued, is inextricably intertwined with the right in terms of Section 10.

Freedom of Movement

Section 21 dictates that everyone has the right to freedom of movement. With the delays in vaccination and the Third Wave looming, harsher restrictions are likely to be implemented and, such restrictions virtually impede enjoyment of this right.

Right to Health

This right is afforded in terms of Section 27 and, it is one of the directly affected rights in the context of this piece.

With millions of taxpayers’ money used in securing the vaccine doses and so little (if any) transparency surrounding the roll-out plan, the least that the government can do is to take vigorous and aggressive steps in implementing the plan. As one can imagine, it is going to be an immensely difficult task to implement the plan when the Third Wave hits and, the best moment to implement the plan is the present moment. This requires a political will and every relevant stakeholder to share a common goal. If the government continues to drag their feet, interest groups and/or individuals should consider taking the matter to court forcing the government to be more transparent; to push for set certain targets and provide reports on the progress.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney
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