The Vaccine Question.

 THE DEONTOLOGY.

(Study the law with Blessed Mupatsi).

There has been pandemonium with regards to mandatory vaccination, which has been approved through governmental policies in response to the devastating effects of Covid-19. Sentiments raised in the main stream media and by colleagues speaks to the effect that the policies infringe fundamental human rights and freedoms as enshrined in the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter referred as ‘the Constitution’). A vaccine is defined as a biological preparation that provides active immunity to a particular infectious disease. The arguments raised are that mandatory vaccination is in violation of sections 52 and 60. The paper will unpack the above constitutional provisions moreso, one must note that in terms of section 86 of the Constitution these are limited rights. 

It is paramount to note that state have a duty to protect human rights in accordance with section 44 of the Constitution therefore; the state has a positive obligation. In event that there is a violation the state must provide effective procedural and substantive remedies. As illustrated in the Velasquez Rodriguez v Honduras (1988) Inter-American Court HR No. 4 para. 174-177 case the failure by the state to protect human rights can translate to state liability. Additionally, the state respect the enjoyment of human rights therefore, it must do nothing to allow enjoyment of human rights by the people this is a negative obligation upon the State. The paper will explore the rights that are alleged being infringed by the State.

Right to personal security.

Every person has the right to bodily and psychological integrity, which includes the right

1. to freedom from forms of violence from public or private sources;

2. subject to any other provision of this Constitution, to make decisions concerning reproduction;

3. not to be subjected to medical or scientific experiments, or to the extraction or use of their bodily tissue, without their informed consent. (emphasis)

The right to personal security is an important innovation in the 2013 Constitution further; it is similar to section 12(2) of the South African Constitution. The writer will pay particular attention to section 52(c) of the Constitutional provision however; case law on the provision is limited in both South Africa and Zimbabwe.  De Waal and Currie argued that the right is divided into two parts (i) medical or scientific experiments and (ii) informed consent furthermore, in Zimbabwean context one can argue a third component (iii) extraction or use of bodily tissue. However, the latter for the purpose of this discussion is not of paramount momentous. De Waal and Currie submitted that when doctors prescribe approved drugs they are still experimenting thus, a reasonable conclusion is that the vaccine is an experiment. There is need for a person to consent for the experiment to be conducted that consent must be informed. However, there is no clear definition or criteria for informed consent but a person must be well-informed of the side effects of the vaccine. 

Freedom of conscience.

(1) Every person has the right to freedom of conscience, which includes—

(a) freedom of thought, opinion, religion or belief; and

(b) freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.

To begin with, section 60 of the Constitution requires the State to treat religions equally see further section 56(3) of the Constitution moreso, the state must recognize and provide financial assistance to religious institutions. The purpose of the provision is to prohibit arbitrary vaccination. In Zimbabwe, there are religious sects that do not use medical treatments (take vaccines). They argue that the vaccine rollout is in violation of their freedom to conscience an international recognized freedom. The right is broad therefore; the paper will examine certain aspects of the right. In Prince v President, Cape Law Society 2002 (2) SA 794 (CC) as read in pari materia with Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) freedom of religion therefore includes the right (a) to have a belief (b) to express such belief publicly and (c) to manifest such belief by worship and practice, teaching and dissemination.  The broader freedom of conscience includes freedom of thought and opinion. With regards to S v Makwanyane & Anor CCT 3/94 the right must be given broader meaning to accommodate constitutional goals. Therefore, one can argue that the vaccination rollout violates their freedom to conscience.

It is important for the writer to note that the above constitutional right and freedom are not absolute. However, the limitation must be constitutional in accordance with section 86 of the Constitution. Further, the reasons for limiting a right need to be exceptionally strong. Firstly, rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of other persons. Therefore, ones enjoyment of rights must not infringe the exercise of rights by another person. With regards to Covid-19 A can argue as submitted above that the vaccine infringes their sections 52 and 60 while B laments that failure by A to get the vaccine expose B thus, violating B’s right to health. Munashe Gutu argued that one must acknowledge that right are equal and interdependent thus, in such a situation the state must adopt the counter majoritarian rule (the majority status or benefit must inconsiderately prevail over the few). He further argues that the State must interrogate the nature of the right which can bear positive results towards the greater good of the majority in the long-term than the short-term.

86 Limitation of rights and freedoms

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom… (emphasis).

A law may legitimately limit a right or freedom in the Bill of Rights if it is 

1. a law of general application

2. fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

A limitation must be authorised by a law, which must be of general application. In Chimakare & Ors v Attorney-General SC 14-13 law was defined to include legislation, common law and delegated legislation. General application means that the law must be sufficiently clear, accessible and precise that those who are affected by it can ascertain the extent of their rights and obligation. Moreso, the law must apply impersonally, equally and must not be arbitrary in its application. In S v Makwanyane it was argued that section 277 of the Criminal Procedure Act 51 of 1977, in terms of which a person could be sentenced to death did not constitute a law of general application since it did not apply uniformly in the whole of South Africa. 

In addition, the limitation test requires a law that restrict a right for reasons that are acceptable in a democratic society. Moreso, the law must be fair, reasonable, necessary and justifiable. To satisfy the limitation test the law must show that there is sufficient proportionality between the harm done by the law (the infringement of the right and the benefit it is designed to achieve. In S v Bhulwana 1996 (1) SA 388 (CC) the court summarized the standard of the legitimacy of limitation:

In sum, therefore, the Court places the purpose, effects and importance of the infringing legislation on one side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.

To add on, as discussed above rights are not absolute once established that the law of general application infringes a right or freedom in the Bill of Rights the State can argue that the limitation is a legitimate one. The paper illustrated that the administering of Covid-19 vaccines violates human rights and freedom as promulgated by the Constitution. However, these rights are limited by operation of section 86 of the constitution.