Government policy vs. human rights: The vaccine question

Introduction The universe is still grappling with the negative impacts of the covid-19 pandemic socially and economically. Due to the pressing economic circumstances that the globe has been plunged into, governments the world over have resorted to a fast track vaccination campaign towards members of the public. While for most jurisdictions, the vaccination uptake has been theoretically, a voluntary based approach just like in Zimbabwe, reality on the ground proves otherwise. Directly or indirectly, the jabbing has been practically imposed upon the masses without effective public consultation, meaningful information dissemination and consensus. Most recently, the government of Zimbabwe issued a statement though the Ministry of Information to the effect that, there is a mandatory need for a complete vaccination card for one to qualify for attending religious sermons. Unsurprisingly, institutions of higher learning followed suit and also resorted to compelling students to get fully vaccinated in order to be fit for receiving academic services. Of note, the University of Zimbabwe and the Harare Institute of Technology issued a circular with an implied disqualification for the unvaccinated students from sitting for their exams. Litigation against same conditions in other countries such as the U.S.A has been such that, in times of pandemics, the right to bodily integrity can be limited. However, the question that this excerpt seeks to answer is, to what extent? and what the government needs to do. The vaccine, human rights and the law A vaccine is simply defined as a biological preparation that provides active acquired immunity to a particular infectious disease usually during a pandemic. Vaccination has been the answer to most of global pandemics including the almost similar Spanish flue of the early 20th century in Europe and smallpox in America. Vaccines are administered in a human body and have a presumed positive impact on a bodily tissue. By their nature, vaccines fall under the dictates of the Constitution on section 52(c) which provides for the right to personal security and not to be subjected to medical or scientific experiments without informed consent. Scientists have been on record stating that, the vaccine development is still being monitored though, its administration has been approved by the world health governing body, World Health Organisation (WHO), suggestive of their safety for human use. It can be noted that, section 52 of the Constitution falls under the Bill of Rights, thus it has a fundamental right status endowed upon it and calls for the government to refrain from interfering with it. This is known as the negative obligation on a human right normally associated with civil and political rights. Informed consent and the government vaccination policy It is argued in this write-up that, informed consent envisaged on section 52(c) of the supreme law is instructive for the State to positively act towards drawing consent of the public as they make a decision that resonates with their right to personal security. It is the writer’s independent view that, the framers of the 2013 Constitution anticipated the exercise of this right through informing the private individual of the possible interference with this right so as to allow for constructive consent in issues of a medicinal nature. The soul or purpose of this right hinges on the need to avoid arbitrary imposition of medicines or vaccines against the informed consent of the receiving party. It appears to the writer that, the test should be two pronged that is, there must be information concerning the vaccine to the public and consent which is derived from such information. The absence of, especially the latter makes the whole initiative an abrogation of the right granted on section 52 since the consent must be from an informed standpoint. However, for the latter to stand, massive roll out of information is key towards the public’s appreciation of a possible infringement of their right, thus in line with what a democratic environment entails. Government policy vs human rights Whenever a government issues a directive, it becomes government policy. A law can be a policy and usually, the government being the government, has the State power to govern in a way it deems fit for the promotion of public policy. Sometimes it uses the law. However, such directive must be in line with the supreme law for it to pass the legality test. It is a result of this conflict or competitive standing that laws tend to be limited by other laws in a lawful manner. Such lawful manner is outlined on section 86(2) of the Constitution as the law of general application. It includes the nature of right concerned and the purpose of limitation among others. For this paper, these two are the most important. Limitation includes for the purposes of public safety, public health and public interest among others not very relevant to this topic. The government has a responsibility to ensure safety of the members of the public, to implement public healthy and to promote public interest. It is the government that has the power to discern the best ways of protecting the public since they form the administrators of the State and when it does so, government policy invariably becomes public policy Competing human rights The vaccination question has led to a contestation amongst members of the public concerning the rights associated. It is common practice in our law that, the exercise of a right by another must not infringe the enjoyment of a right by the other. Unfortunately, human rights are more often than not, in a state of competition. For example, individual A can argue that the vaccine infringes her right to bodily integrity while individual B laments the failure of A to get vaccinated as a possible infringement of his right to health whenever A gets exposed to B. In such instances what matters, should not be the weight of either right, but the nature of the rights concerned since rights are treated as equal and inter-dependent of each other. The State must, therefore 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. Nonetheless, it must be stressed that, the counter majoritarian rule (the doctrine that the majority status or benefit must inconsiderately prevail over the few) associated with this approach should be mitigated through taking positive steps towards informing the public of the advantages associated with vaccination and possible risks. The idea is to make open and transparent the whole vaccination program in line with the right to information on section 62. Thus, it dispenses with the skepticism and suspicion that usually arises from ignorance and most of all, allows room for drawing the much needed informed consent. Thus, it serves as a better approach than the hard and fast approach that promotes arbitrary policies which can potentially widen the effects already associated with a limitation of a right. Tertiary institutions In a recent judgment concerning the disenrollment of the unvaccinated at the Indiana University in the U.S.A, the Court cited with approval, the classical case of Jacobson vs. Massachusetts 197 U.S 11 (1905) upholding the decision of public bodies to limit services to vaccinated students only. In the judgment, the Court directed Plaintiffs to other institutions where vaccination was not mandatory as possible alternatives to those who do not want vaccination. The Court made a founding in passing that, “Vaccination protects not only the vaccinated persons, but also those who come into contact with them, and at a university, close contact is inevitable”. It also went on to emphasize that. “People who don’t want to be vaccinated may go elsewhere”, thus the Plaintiffs have many educational opportunities. However, contextually, this is almost impossible in Zimbabwe where over 90% of institutions of higher learning are owned by the State. Thus, technically, one is left with two options; to get jabbed or to forfeit education. The latter is not workable. If our Constitutional Court is to receive a similar lawsuit, applying the same approach applied in the Ryan Klaassen vs. Trustees of the Indiana University case above would be akin to killing an ant using a sledgehammer. Context should prevail and equitability of propositions should form the core in its finding. Conclusion & Recommendations The government of Zimbabwe must invest more in creating public confidence in the vaccine and the science behind its development. This can be done through massive information disbursement, engagement with the clergy, civil society pand community leaders since the public is most likely to follow a directive from those than mainstream politicians. If ever herd immunity is to be realized, informed consent is critical so that, vaccination will be viewed more as a progressive development than a coercive and mooted grand plan to violate clear human rights. As it stands, members of the public in all walks of life are skeptical and feel that, they are more or less than guinea pigs in as far as what concerns them is concerned. Most citizens are getting vaccinated in order to pass an institutional condition and this is an anomaly. The public, in a democratic setup should make well informed, voluntary decisions. Hence, the consent based approach should take precedence over the duress based approach.

Munashe O’brian Gutu is the Secretary General of Zimbabwe Law Students Association (ZILSA) at the University of Zimbabwe Law School . He is also a Social and economic justice ambassador (Seja)