Landmark judgment on vaccinations

MASERU – THE controversial regulations forcing every Mosotho to vaccinate for Covid-19 are unconstitutional.

That is the verdict of the High Court in a landmark ruling delivered this week.

The judgment, described by some legal experts as unprecedented in southern Africa and possibly Africa, also says the government cannot stop the unvaccinated from entering public spaces like hotels, restaurants, churches and malls.

Its import is to instantly kill the mandatory vaccination campaign the government has aggressively pushed to curb the spread of Covid-19.

Also dead in the water are Regulations 23 and 24 on which the government had strongly leaned to push the mandatory vaccines and bar the unvaccinated from public spaces.

But its implications could be far-reaching especially if its spirit is to be strictly followed and applied to other individual health matters on which the government had long considered itself to have a say.

It could go as far as curtailing the government’s powers to force individuals to vaccinate for other diseases.

For instance, it says individuals can refuse vaccinations based on religion and other philosophical reasons.

Lawyers say the judgment could also restrain the government’s authority to take drastic national measures to respond to disasters triggered by pandemics.

So contentious was the case that the three judges who sat as the constitutional court were not unanimous in their decision.

Justice ’Malebona Khabo and Tšeliso Monaphathi made the majority decision while Chief Justice Sakoane Sakoane dissented.

The challenge to the regulations was brought by the Christian Advocates and Ambassadors, the Justice and Democratic Ambassadors Association and the Lesotho Public Service Staff Association.

They were supported by three other individuals in the application that made over a dozen prayers.

The judgement dismissed the majority of the prayers and granted two.

But those two prayers were the essence of the case. It boiled down to two constitutional questions.

First, whether the government has the power to bar the unvaccinated from public places. Second, whether the government has the power to force individuals to vaccinate.

The majority judgement was emphatic.

The judges said the Minister of Health’s powers to protect the public’s health do not give them authority to issue “sweeping health regulations or standards, which do not take into account legitimate religious and/or other philosophical beliefs even under the new hazardous conditions brought about by the Covid-19 pandemic”.

“The Regulations failed to draw distinction based on different industries and different risks of exposure. They were otherwise issued and intended to operate as a blunt instrument.”

The judges said the minister’s failure to make exemptions based on other grounds, including legitimate religious or philosophical belief, is “unjustified and unreasonable”.

This, they noted, is because vaccines do not protect against infection and there are other less intrusive measures recommended to curb the spread of the virus.

The judges said Regulation 23’s Achilles Heel was to exempt only people with medical conditions from vaccinating.

This, they said, is too restrictive, because other people may not be able to vaccinate for religious and philosophical reasons.

They said instead of mandatory vaccination and an outright ban of the unvaccinated from public places, the minister could have required individuals to produce Covid-19 negative certificates to guarantee public safety.

Chief Justice Sakoane’s dissenting judgement said the regulation should stand because the applicants have not suggested other less restrictive means of implementing the vaccine mandates.

He said because the thrust of their case is an exemption from vaccine mandates based on privacy, discrimination and religious objections, he finds that the limitations to their rights and freedoms were “reasonable and demonstrably justified”.

Advocate Fusi Sehapi, one of the driving forces behind the application, described the judgment as ground-breaking.

He said the ruling means that any regulation or law that has no exceptions is unconstitutional.

“It is critical to stop the government from overreaching its powers even when its motive is in the public interest,” Sehapi said.

Staff Reporter