The impact of a delayed Covid-19 vaccine programme on our Constitutional rights

At the beginning of this year, several leaders in South Africa’s medical fraternity called for the axing of government officials who are responsible for the delay in procuring Covid-19 vaccines for the country.

In the City Press opinion piece, published online by News24, and signed by nine officials from health organisations, hospitals and universities, including Professor Glenda Gray, the president of the South African Medical Research Council, South Africa’s vaccine strategy is deemed an “unforgivable failure, which will be measured in lives lost in their thousands, sickness for tens of thousands, a broken health-care system and profound and ongoing economic damage”.

While there has been much anger and frustration over South Africa’s slow response in procuring and administering COVID-19 vaccines, it remains the government’s responsibility to protect its citizens from this pandemic, while upholding the rights of all South Africans enshrined by our Constitution.

The Constitution of South Africa provides the legal foundation for the existence of the Republic, setting out the rights and duties of citizens, and defining the structure of the government. The Bill of Rights, contained in Chapter Two of the Constitution, is the cornerstone of democracy in South Africa. It enshrines the rights of all people in South Africa, and affirms the democratic values of human dignity, equality and freedom. It binds natural and juristic persons alike.

Not securing a vaccine timeously brings into question the constitutionality of the government’s actions in this time of crisis. These are just some of the rights threatened by the inability to act swiftly in a Covid-19 vaccine roll-out strategy:

The Right to Life and Healthcare Services

Public and private healthcare services alike have reached breaking point. Photos on social media and testimonials from medical professionals paint a grim picture of hospitals inundated with patients and under-resourced to provide adequate care with ICU beds rapidly filling up. Failing to secure vaccines with urgency has become a matter of life or death, with the country’s Covid-19-related mortality figures at their highest.

Covid-19 has also disrupted other critical medical care, such as cancer treatment, transplant surgeries and other life-saving procedures, leaving many patients in serious condition and uncertain of when they will be attended to. The longer we wait for a vaccine, the right to healthcare services, and ultimately, the right to live, is in jeopardy.

The Right to Freedom of Movement

Movement within the country has been severely affected by the pandemic, from the closure of beaches to various travel restrictions to curb the spread of the virus. The government’s curfew has also denied citizens in leaving their homes.

Without a vaccine, it’s unlikely that severe regulations that curtail our right to move freely will be eased anytime soon.

The Right to Basic and Further Education

Everyone has the right to basic and further education, which the state, through reasonable measures, must make progressively available and accessible.

Basic Education Minister Angie Motshekga has warned that the effects of the coronavirus pandemic will be with schools for at least three years.

Although curriculums have been trimmed down, it has been reported that learners only finished approximately 70% of the work they were supposed to do for the 2020 school year. Minister Motshekga said, “The remaining part of the curriculum would need to be incorporated into the 2021 school year.”

The current delay in the re-opening of South African schools, exacerbated by the limited progress in Covid-19 vaccinations, makes it unlikely that this work will be caught up and will invariably result in learners falling further behind.

The Covid-19 vaccine is the only hope to stop the virus from spreading, as non-pharmaceutical measures, such as wearing of masks, limiting movement, and closing schools, is not having the desired outcomes. It is government’s responsibility to abide by and respect the rights enshrined in our Constitution and protect us all as citizens. The failure to timeously secure vaccines may be seen as endangering these very rights.

Jean-Paul Rudd
Partner | Attorney
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