SADC and Covid-19: collective failure to meet human rights obligations says ICJ

14 May 2021 · Carmel Rickard

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report. These include denialism (Tanzania and Madagascar) and the failure to share relatively greater resources (South Africa). Even though SADC’s chair, President Filipe Nyusi of Mozambique encourages a ‘regional pooling of resources’ to make it easier to procure vaccines and their distribution, ‘SADC has … taken no clear action towards this goal.’

Read the report

The shock statistic with which this report begins puts the argument behind the briefing paper into stark perspective: by the start of May 2021, most Southern African Development Community (SADC) member states had fully vaccinated ‘no more than 0.6 percent of their population’.

The International Commission of Jurists (ICJ) says that the reasons for this ‘dire situation’ can too often be found in the ‘failure of the states in the region, singularly or collectively, to do what is necessary within their capacities to meet the gravity of the problem’ of Covid-19.

Entitled, ‘The unvaccinated: Equality not Charity in Southern Africa’, the new ICJ report was informed by input from local human rights defenders and public health experts in the relevant SADC countries, and it clearly conveys some of their concerns and frustrations.

Agendas

One of the issues troubling international health experts is the tendency in much of the region to allow political agendas to shape public health responses. But despite appeals not to politicise the pandemic, the crisis has often led to a system ‘steered by narrow political considerations rather than science.’

‘Prominent examples include Tanzania and Madagascar, where Covid-19 denialism prevailed for approximately a year, but also include countries such as Malawi, Zimbabwe or Zambia, where governments have abused Covid responses to advance their political agendas.’

This abuse has often been made possible because governments followed ‘state of emergency’ or ‘national disaster’ provisions that centralised state power, ‘rather than allocating tasks to specialised, independent health authorities.’

Confusion

And while most SADC members claim to work extensively with independent health experts and to base their decisions on scientific evidence, ‘the lack of transparency in terms of reasoning behind government responses creates greater confusion and hesitancy amongst the population.’

As to vaccine programmes, the report says that across the SADC countries ‘details of Covid-19 vaccine acquisition rollouts remain scarce, as rollout plans often appear not to exist or, where they do exist, are seldom adequately detailed.’

In Botswana, for example, government’s decision on who was included in the categories ‘front line workers’ and ‘vulnerable individuals’ was still not made available even as vaccinations began.

Litigation

‘In Namibia, local human rights defenders and public health experts assert that at the time of vaccine arrivals in Namibia, the government had not provided any concrete roll-out plans. Similar reports were made by human rights defenders from Angola and the Democratic Republic of Congo.’

By contrast, Mozambique and Kenya both published detailed plans. So did South Africa, though its extensive information was not backed by a comprehensive plan with timelines. In Zimbabwe, the lack of information led to litigation trying to force the government to publish a roll out plan, and to a complaint made to the African Commission on Human and Peoples’ Rights.

The report includes details of which vaccines have been made available in which countries, noting that in some countries, a growing part of the population have rejected the AstraZeneca vaccine. In Mauritius, for example, ‘members of the judiciary collectively refused the AZ/SII vaccine, as a result of several European countries having suspended the vaccine due to potential health risks, including blood clotting.’

Marginalised groups

A common, troubling thread through the region has been government failure to allow ‘meaningful and adequate participation’ by human rights defenders and civil society organisations’ in their planning. This effectively prevented populations at risk and marginalised individuals and groups from full participation in the pre-vaccination phase.

The report also deals with how ‘the authorities of Tanzania and Madagascar have taken severe and illegitimate criminal action against civil society simply for exercising their rights to freedom of expression. The prevalence of overly broad ‘fake news’ regulations in the SADC, including in Zimbabwe, South Africa and Eswatini, may have a similarly chilling effect on civil society participation in vaccine rollout planning and monitoring.’

Dealing with the ‘acute’ problems presented by some states, the report notes how the Tanzanian government ‘denied the very existence of Covid-19 on the territory’ and that it has not published any official Covid-related data since May 2020.

Repression

Tanzania suffered from another serious problem – the repression of dissent by human rights defenders, said the report. ‘Media outlets and journalists were fined and ordered to apologise for publicising material critical of the government’s handling of Covid-19 and generally reporting on Covid-19. Such measures and the broader repression of [human rights defender] dissent violates their rights to freedom of expression and reduces the possibility of effective Covid-19 responses and vaccine acquisition and distribution planning.’

The report details Covid-related problems experienced in other SADC countries as well and concludes that the responses of SADC members states have ‘fallen short of the critical steps necessary’. They have failed, in varying degrees, ‘to meet their international legal obligations to ensure equitable access to vaccines for their populations and to otherwise guarantee and ensure the rights to health, life and equal benefit from scientific progress.’

Against this background, the ICJ thus recommended that individual member states should cooperate and where necessary ask for regional and international help to ensure ‘equitable access’ to vaccines across all SADC countries. The SADC secretariat should further facilitate and advance the procurement of vaccines, provide clear guidance to the SADC countries ‘on their human rights obligations’ related to vaccine access, and help the states remedy their failure to act according to their obligations under international law, including regional agreements.

Drop charges

Tanzania should ‘publicly affirm’ the efficacy of vaccines, ensure resources are made available to start buying a supply and immediately take corrective action to ensure that freedom of expression and access to justice by human rights defenders and journalists is respected. This should be achieved by, among others, dropping charges against those sanctioned for criticising government’s Covid-19 response measures, and releasing those being held in relation to comments critical of government’s response.

Among the other countries for which the report proposed concrete remedial action, Malawi is urged to ensure that lockdowns and other restrictive measure aimed at curbing the spread of Covid-19 should all comply with international human rights laws and standards. South Africa should publicise its roll-out strategies and plans to ensure ‘non discriminatory access’ to vaccines by all people in the country. And Zimbabwe must ensure compliance with its human rights obligations by publishing its acquisition and concrete rollout strategies, and ensuring that information about Covid-19 transmission rates and deaths is collected and publicised. Zimbabwe is also urged to ensure that ‘access to courts is sufficiently maintained during emergency situations’ so that access to justice for alleged human rights violations is still possible.

Carmel Rickard

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