Vaccine conundrums to keep one up at night

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A delightful cartoon by Carlos in this paper (3 December 2021) portrayed “some antivax types”: the hippie, the libertarian and the paranoiac. Marching with posters, they were followed by a happy Omicron, cheering on “these idiots”. Where was the religious fanatic, though?

A while ago a young worker in a small business told me — with the gentle smile of someone who already sees the New Jerusalem — that she was not vaccinated or wearing a mask because God would protect her against Covid. She was unsure about the safety of her clients, but not her own. My questions regarding masked, vaccinated, sinful souls like me were met by the same eternal empty smile.

In another business on the platteland, normally a wonderful example of peace and goodwill among the races of our country, I argued with the owner — in full Muslim attire — about the fact that no one in his shop wore a mask. When I stated that their conduct could kill people, he said in fluent Afrikaans with a brotherly yet reprimanding look in his big brown eyes: “Only God decides who lives and who dies.” 

Do not panic when your aircraft flies through scary, bumpy “air pockets”, someone said. “If it is not your time, it is not your time.” But what if it is the time of the passenger next to me? We are all in the same boat … or aeroplane.

Why do Christians lie so easily, I once asked in an article, with reference to evidence in courts. The question probably applies to members of several religions. Do those who claim to be Christians but lie under oath in fact lie about their Christianity?

Why do religious fanatics kill so easily? This, one is tempted to ask regarding vaccinations. How can staunch believers in a deity who commands love and respect for human dignity risk causing human suffering and horrific death on a ventilator, with such calm conviction, nogal? Did the late Archbishop Desmond Tutu falsely preach that because we were created in the image of God, God was in every one of us? 

Religion has of course killed cruelly over centuries, but mainly perceived enemies, witches, or heretics. 

Why endanger neighbours who try to help one another to live safely? The argument that they fight for free choice sounds strange, given the alleged command that we must do God’s will and never our own. Is it to separate believers from heathens; or saints from sinners? Are they closet aspiring serial killers? Do they believe former chief justice Mogoeng Mogoeng that some vaccines come “from the mouth of the beast with the mark 666 on it”? Or are they just searching for identity and recognition in a world that has marginalised them?

The constitutional validity of mandatory vaccinations may soon be decided by courts. Constitutionally, rights can be limited by law. The limitation must be reasonable and justifiable in an open democratic society based on human dignity, equality and freedom. 

In determining this, several factors must be taken into account: the nature and importance of the right and of the limitation; and the purpose and extent of the limitation. The limitation must be linked to its purpose. Proportionality is crucial. One does not kill a fly with a sledgehammer. Less restrictive means to achieve the purpose must thus be considered.

However, unlike under some comparable constitutions, the legislature does not have to choose the least restrictive measure. It must merely fall within a range of reasonable options. It is not for the courts to decide on a speed restriction of 125km/h, if experts agree that it would achieve road safety as well as 120km/h would do. Clearly, 20km/h would be unreasonable and thus violate the right to free movement.

Rights may and must be limited for their own survival. They often compete. Governments must protect all rights by making laws in the public interest.  A slow, suffering and lonely death in an overcrowded hospital may be good news for the next critically ill Covid patient desperately waiting on the hallway floor for a vacant bed, but is not how a government should treat the rights to life and dignity of its people. 

The protection of these, together with the rights of access to healthcare and to an environment that is not harmful to one’s health and wellbeing, constitute an important purpose.

Theoretically, all rights can be limited. It is not easy to imagine what would constitute a reasonable limitation of the rights against torture or slavery. Vaccination is not torture or slavery though. Comparisons with the Holocaust and the apartheid dompas are viciously disrespectful, or just plain dishonest. 

It is argued that mandatory vaccination may violate the rights to life, dignity, privacy and freedom of belief and opinion. These must be weighed against the earlier mentioned rights to determine the lawfulness of limiting them.

Criminal punishment for the unvaccinated might be unconstitutional overkill. Access to clubs and restaurants is easy. If you do not respect our safety by getting vaccinated, our right to free association entitles us not to play or party with you. 

The workplace and examination rooms are more difficult. The right to life entitles you to a livelihood; and everyone has the right to education and to choose a profession.

According to scientists, vaccination is highly unlikely to be lethal. How it could damage dignity and privacy is not clear to me, but may depend on circumstances.

Does any major organised religion tell its followers that they will go to hell, or offend their god or gods, by getting vaccinated? Can those who agree with Mogoeng not just pray with him for the destruction by fire of satanic vaccines — for the good of us all? I should not lightly be forced to act against my belief and opinion, but could the strong conviction of many that their hard-earned money is wasted or stolen exempt them from paying tax?

The right to bodily integrity provides the most serious challenge. Examples like the limitation of free movement by traffic rules — earlier mentioned by me in this space and by Judge Dennis Davis on his TV show Judge For Yourself — are not entirely fair and accurate. 

Legally compelling me to have a biochemical substance (or concoction, some would say) injected into my body is much more serious than restricting me to drive on the left of the road, or prohibiting drunken driving. But the right to fair labour practices requires employees to create safe working conditions. The Public Health and Safety Act regulates this. The health of many may outweigh the objections of few.

Covid has taught us innovation. A multitude of measures may allow workers who are unvaccinated for sound reasons to work. Any law will have to provide for medical exceptions. Even a psychiatrically diagnosed acute fear of needles, that for example causes ongoing nightmares, could be a relevant condition.

The question is not whether mandatory vaccination is the one and only way to achieve safety. It is whether it falls within a range of proportional, reasonable and available measures.

My former colleague, Justice Sisi Khampepe, once said publicly that I often asked questions that make judges stay awake at night. Perhaps the above is small fry for sitting judges. As a retired constitutional court justice, I may not be seen to try to influence decisions. This is my convenient excuse for not proposing answers. 

Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court, the founding director of the University of Pretoria’s Centre for Human Rights and former inspecting judge at the Judicial Inspectorate for Correctional Services