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COVID-19 vaccines: Mandate or choice?
Author: Development & Alumni Relations
Published: 21/10/2021

​​​​Topical legal and ethical aspects of COVID-19 vaccines and whether it should be made mandatory were aired during an online panel discussion hosted by Stellenbosch University's (SU) Development and Alumni Relations Division on Tuesday, 19 October.

​This, the second in a series of conversations named the Matie Crest Talks, was entitled COVID-19 vaccines: Mandate or choice. The panel speakers were Justice Edwin Cameron, Chancellor of SU, and retired Justice of the Constitutional Court of South Africa, Prof Keymanthri Moodley, Director of the Centre for Medical Ethics and Law, Prof Thuli Madonsela: Law professor and Law Trust Chair in Social Justice, and former Public Protector of South Africa and Zackie Achmat, Co-director of NGO Ndifuna Ukwazi (Dare to Know), and co-founder of the Treatment Action Campaign. The discussion was led by Prof Nicola Smit, Dean of SU's Faculty of Law.

Prof Moodley was asked if mandates are indeed necessary and, if so, what are the prerequisites for introducing vaccine mandates.

“The issue around achieving an outcome in a pandemic such as this public health emergency requires action by large numbers of people," said Moodley. “We are currently sitting at 27% of the adult population being fully vaccinated. But the aim is to achieve vaccination coverage of 70% by December this year. We can already see that we are falling behind and that we need an important strategy to apply in order to improve our uptake for public health benefit.

“So what are the prerequisites for a mandatory vaccine policy? Firstly, we need safe and effective vaccines. It is also important that there is an abundant supply of vaccines that are free and accessible. Mandatory policies must be respectful, it is not a punitive measure but rather is intended to protect public health. The policies must be implemented together with the toolbox of other preventative measures such as widespread counselling and education around the importance of vaccines during this pandemic."

She added that in order to increase vaccine uptake by around 18 to 20 percentage points, a vaccine mandate is important.

“Research has shown that mandates in different parts of the world, both for childhood vaccinations as well as COVID-19 vaccinations, resulted in an increased uptake of around 18 to 20 per cent, which is exactly what we are going to need if we want to get 70% of the adult population fully vaccinated by December."

Justice Edwin Cameron fielded the question: With personal and individual freedoms well-established under our Constitution and law, are mandatory vaccines in policy permissible and legally justified?

“It is agreed among all legal experts who have spoken about this that vaccine mandates are constitutionally permissible," said Cameron. “There is a more or less settled consensus that it would be constitutional for employers, for the government, for departments to require people to be vaccinated. The science and medical technology is well-established."

He added that it is important that vaccine mandates be implemented with respect and that it should not be punitive and draconian in nature.

Prof Thuli Madonsela was asked to explain what the social justice symbolic value is that choice and mandates respectively provide for, especially in a time of social instability and where trust in government institutions are at an all-time low.

“I think governments globally and ours as well have handled this matter terribly. I do think that social justice does not only dictate that we be treated equally in terms of service provision, but it also dictates that we have a voice. This includes the importance of the recognition of diversity and differentiated treatment where necessary. Another is restitution in the event that things go wrong. That has not been dealt with very well. So that makes it really difficult for people to come on board because they do not know their rights should things go wrong. When there is no transparency, trust dies."

Moodley then responded to the question: Why do young people need a COVID-19 vaccination when they have a lower risk of developing an infection and severe disease?

“Young people are still able to transmit that disease to other people who are more vulnerable in society," Moodley replied. “In South Africa we have a culture of multi-generational households where there are grandparents living with parents and young children. So the risk of transmission to our grandparents is an important one to consider and in that case vaccinating young people would definitely be a benefit."

With regards to vaccines, especially the Pfizer and Moderna vaccines causing myocarditis, inflammation of the heart muscle, in young men and adolescents, Moodley said:  “Studies are being published and have shown that the risk is very small. Approximately one in 50 000 people have been shown to develop this side-effect in some studies in Israel. But when they do develop it, it is relatively mild, some hardly notice it and the important thing is it gets better within a short period of time."​