The South African Human Rights Commission (SAHRC) has stated that a general law mandating Covid-19 vaccination in South Africa would not necessarily be a human rights infringement.

According to the SAHRC, a general law compelling South Africans to get vaccinated would be constitutionally sound under the right circumstances. However, the commission has also called on the government to explore all options to encourage voluntary vaccination first.

There has been extensive public debate around mandatory vaccination, and the government has said vaccine certificates will be rolled out soon. Some businesses were likely to deny services to those who weren't vaccinated.

"For many, the question is whether compelling a person to take the Covid-19 vaccination would violate human rights entrenched in our Constitution," the SAHRC said in a statement.

The Constitution protects several individual rights. These include the right to health, life, freedom of religion, a healthy environment and freedom and security of person. The right of security in and control over one's body and the right not to be subjected to medical or scientific experiments without one's informed consent are included.

Limitation is reasonable

However, the Constitution does provide for the Bill of Rights to be subject to limitations.

"Therefore, the rights of individuals, save for non-derogable rights (such as the rights to life and human dignity) can be limited in terms of section 36 of the Constitution, firstly, when the limitation of these rights is done in terms of a law of general application, that is, if the state passes a law that articulates a general compulsory Covid-19 vaccination regime. Secondly, to the extent that the limitation itself is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom," the SAHRC said.

This means it would be "constitutionally permissible" to require people to vaccinate "provided that this is done in accordance with the processes stipulated in the Constitution", it said.

"Given that the pandemic is an existential crisis that affects all human beings and implicates both rights and responsibilities, it is highly likely that a general law mandating vaccination will pass constitutional muster," said the commission.

However, the commission also stated that it supported voluntary vaccination and believed that the benefits outweighed people "defending their rights, for example, to bodily integrity and perpetuating the suffering of the whole nation".

"In our view, if the state decides to compel all eligible people in the country to take the Covid-19 vaccination, it should do so as the last resort. The commission is not convinced at this stage that all efforts have been made, particularly by the state, to educate people on the need for and workings of the vaccines in an effort to convince them to voluntarily vaccinate," the SAHRC said.