Frustrated and worried with low Covid-19 vaccine uptake, government is considering making the jabs compulsory, Nation on Sunday has learnt.
Ministry of Health spokesperson Adrian Chikumbe confirmed in an interview on Wednesday that government is exploring ways of making the vaccines mandatory to increase uptake, and has since sought the Attorney General’s (AG) legal opinion on the matter.
AG Thabo Chakaka Nyirenda confirmed receiving the proposal and has since provided his position on the issue to government.
He declined to disclose his opinion, saying: “My legal opinions are confidential to my clients and I cannot tell you what I advised them, but if the ministry wishes to share that with you, they are at liberty to do so.”
The ministry was also unwilling to share the legal opinion, arguing that its engagement with the AG’s office was ongoing.
Chikumbe said government’s proposal is based on a recommendation of the University of Malawi’s Centre for Social Research study that is saying making the vaccines compulsory would boost their uptake.
The study done by Chrissie Thakwalakwa, Tawonga Mwase-Vuma and Alister Munthali found that most people know about Covid-19 and its vaccines from information they get from the radio, health workers and other sources.
According to the study’s preliminary findings, over two-thirds of respondents showed willingness to get the vaccines if they were recommended to them, a quarter were not ready for the jabs whereas 8 percent were undecided.
Those who showed unwillingness to get the vaccines cited lack of information and trust in the vaccines, fear of side effects and a belief that the vaccines were not effective.
Despite the study indicating willingness among most respondents to get the vaccines, Malawi’s Covid-19 vaccine uptake remains low at 3.2 percent of the targeted 11 million people against the World Health Organisation’s recommendation of 30 percent by December this year.
Chikumbe said it was the low uptake of the vaccines that made the ministry consider making them mandatory.
“We know it is one’s right to accept or refuse any form of healthcare, be it advice, procedure, medicine or vaccine. That is why we engaged the Attorney General on the way forward.”
Catholic University dean of law and former Malawi Law Society (MLS) president John-Gift Mwakhwawa said time has come to weigh certain human rights against the right to life.
Arguing on the basis of the severity of the pandemic, he wondered if it would be reasonable to allow people to say they have a right not to receive the vaccines when their decision puts many people at risk of losing their lives, when they also have a right to life.
Mwakhwawa argued that the severity of the pandemic is unprecedented and the country has never experienced something like this since it embraced human rights in 1994.
He said: “This pandemic is deadly and beyond HIV and Aids. While one could abstain or use a condom to protect oneself from HIV and Aids, it is not the case with Covid-19. The way it spreads is different.
“With Covid-19, you can spread it to many people within seconds, if you are careless at the workplace and other public gatherings. But these people, too, have a right to life. So, should we say it is a right thing for one to spread this disease, and in some cases knowingly, on the basis that one has a right not to receive the vaccine? How about the right to life of these other people?
“Time has come to question the application and interpretation of what these laws say. It is a challenging question, but looking at how serious this pandemic is, we need answers and to scrutinise the essence of some of these human rights. We will wait and see what legal advice the AG may give, but this is a challenge we have to sort out.”
MLS president Patrick Mpaka said compulsory vaccination interferes with the human right of bodily integrity, which is part of the right to private life enshrined in the Universal Declaration of Human Rights and in Section 21 of Malawi Constitution.
Mpaka said if refusal to get vaccines is based on a belief, then it goes beyond privacy rights but premises on freedom of conscience and belief protected in Section 33 and entrenched in Section 45 of the Constitution.
He explained: “However, not every interference with the right to privacy is automatically illegal. The legality depends on several factors listed in Section 44(1) of the Constitution.
“In the Czech Republic, for example, children undergo mandatory vaccination for several diseases. If parents do not comply with this policy, they are fined and the children cannot attend preschool.”
The MLS president said although the European Court of Human Rights agreed with the applicants that this policy interfered with their right to private life, the court thought that this interference was justifiable.
Mpaka added: “The Czech Government managed to persuade the court that their policy is necessary to protect the health of its population. Maybe the Malawi Government can justify compulsory vaccination against Covid-19 if it can show that the vaccination protects the wider population.
“Another important question is whether the policy allows for exceptions. Even compulsory vaccination should allow those with valid health-related and other relevant reasons to opt out. If such exceptions are not provided for, then it is likely that the policy would violate human rights of vulnerable people.”
He added that government should be clear on what exceptions may exist and who will decide if the exceptions are justifiable.
The MLS president said where the rejection to vaccination is based on belief or conscience, Section 45 of the Constitution makes that right not limitable.
Said Mpaka: “The government may have to work on promoting intensive awareness first so that the belief systems are attuned to the acceptability of the vaccines. Once that is done, then the government will remain with the privacy issue which can possibly be managed by reference to protection of the population.
“All this must be science-based. Needless to say, the subject of compulsory vaccine in an emerging area where science is not yet settled, it is a complex matter requiring thorough, effective and timely consultation and engagement.”
University of Malawi law professor Garton Kamchedzera said since resistance may likely come from the perspective of human rights or ignorance, the Ministry of Health should make and publicise subsidiary legislation from a human rights-based approach, but with the right to health as the right most at risk.
He explained: “In that approach, the ministry should articulate duties various duty-bearers have to respect, protect, promote, and fulfil that right. That would partly entail placing a duty on an individual to be vaccinated against Covid-19 infection or to restrict those not vaccinated from being in the proximity of others.”
Kamchedzera said he does not agree with the use of the word “compulsory” or a “compulsory approach” to law making because it produces “dogs laws and people are not dogs”.
He argued: “That is why I say they must take a human right-based approach which is more likely to be reflexive for people to comply with and own it.
“There is the Public Health Act, which is out of date for an effective legal framework to prevent the spread of this pandemic. Both the MLS and the High Court sitting as a Constitutional Court last year required government to review, change or replace this largely irrelevant piece of legislation.
“Government has not yet done that, preferring to use subsidiary legislation or failing to respond properly. To ensure that everyone is vaccinated, they do not need to change primary legislation or the Constitution, especially because time is not on our side.
“They can continue to use subsidiary legislation but they must adopt a human rights-based approach. In that approach, a compulsory legislative approach will again produce dogs’ law, which people may resist.”
However, Kamchedzera said if they focus on the protection of the right to health in the context of the pandemic, they will achieve the same intention.
Another law professor at Cape Town University in South Africa, Danwood Chirwa, said context matters in this proposal.
He said: “If Malawi has implemented a concerted vaccination campaign and gave everyone an opportunity to get vaccinated, the mandatory vaccination could probably be justified.
“As far as I’m aware, the State may not be able to prove that it has done this, that it had large quantities of the vaccine to reach the entire eligible population, and that it has exhausted all non-punitive measures.”
In the South, the Centre for Social Research study was conducted in Blantyre and Mangochi whereas in the Centre, it was done in Ntchisi and Mchinji. In the North, it was conducted in Chitipa and Mzimba.