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Opinions of Tuesday, 2 March 2021

Columnist: Zoe, Akyea & Co

Coronavirus vaccinations: A case of balancing human rights with public health and public interest?

COVID-19 has attained the status of a global pandemic by affecting about two hundred and nineteen 219 countries in the world and has affected almost every aspect of human life.

The far-reaching consequence of this global pandemic has altered the rights of the two actors of the social contract theory, the state and its citizens. This article considers the right of a state to protect its citizens through COVID-19 vaccine as against the rights and liberties of a citizen to resist taking the vaccine under the laws of Ghana.

This article will be discussed under the following headings for ease of reading and for better appreciation;

• Introduction.

• Origin and status of COVID-19.

• Production and equitable distribution of vaccines.

• Public perception of vaccines.

• Whether or not vaccination should be mandatory.

• The way forward.

• Conclusion.

Origin and Status of COVID-19

The first known infections of COVID-19 emanated from Wuhan, China in 2019 and eventually spread throughout the world. The virus, according to scientists is airborne and spreads through physical contact. Consequently, the COVID-19 preventive protocols including social distancing, wearing of mask, regular washing of hands, and the use of sanitizers were propagated worldwide to help contain the rate of transmission of the virus.

It is instructive to state that as of February 19th 2021, information from the worldometer website shows that COVID-19 had infected one hundred and ten million, eight hundred and fifty nine thousand, nine hundred and ninety eight (110,859,998) people worldwide, with total deaths of two million, four hundred and fifty thousand, nine hundred and twenty six (2,452,926).

In the USA which is one of the hardest hit countries, the virus had infected twenty eight million, five hundred and twenty three thousand, five hundred and twenty four (28,523,524) people, with a total death toll of five hundred and five thousand, three hundred and nine (505,309). On the same day, Ghana’s death toll stood at five hundred and sixty eight (568), with the total number of infected people at seventy eight thousand, six hundred and eighty nine (78,689).

It goes without saying that the second wave of Covid 19 is more severe than the first. Suffice it to say that, the billions of people around the world face the grim prospect of a worsening epidemic with all the uncertainties that come with it if serious and effective measures are not marshaled to curb the spread of the COVID-19 virus. It is the least the world can do for its people.

Just like other countries in Sub-Saharan Africa, Ghana is battling a second wave of the novel coronavirus.This has put Government of Ghana and other stakeholders on their toes and almost at their wits end to find lasting and effective solutions to the pandemic. The Government of Ghana plans to procure seventeen million, six hundred thousand (17,600,000) doses of COVID-19 Vaccine by the end of June 2021 with the first doses set to arrive in March .

Production and Equitable Distribution of Vaccines

Vaccination is estimated to save about three million (3,000,000) lives every year and protect people against twenty (20) infectious diseases in the world.

But what is really meant by ‘vaccination’? A definition and nature of vaccination may be attempted as follows for the purposes of this article:
“Vaccination is a simple, safe, and effective way of protecting people against harmful diseases, before they come into contact with them. It uses your body’s natural defenses to build resistance to specific infections and makes your immune system stronger.

Vaccines train your immune system to create antibodies, just as it does when it’s exposed to a disease. However, because vaccines contain only killed or weakened forms of germs like viruses or bacteria, they do not cause the disease or put you at risk of its complications...’’

As is to be expected with all things of a scientific nature, there are a myriad of advocates who support the anti- vaccine movement worldwide. No doubt, there are also the conspiracy theorists to deal with. However, they will not be the focus of this article.

As the world has become saddled with the COVID-19 fight, and in the wake of efforts of vaccines developments and even production of vaccines, serious and genuine questions have been asked about the allocation, access and distribution of the vaccines.

The production and equitable distribution of the COVID-19 vaccine itself raises some concern. Countries have had to deploy both local and international means to acquire the vaccine for their citizens. The distribution of the vaccines are based on various factors such as priority in terms of countries most hit by COVID-19 and the ability of countries to afford the vaccines.

There have been concerted efforts by international organizations to ensure sustainable and safe production and equitable distribution of COVID-19 vaccines globally. The United Nations (UN), World Health Organization (WHO) and other specialized bodies are all collaborating in order to mitigate the adverse economic impact of the pandemic.

The UN has played a leading role on the international scene both in terms of a broad policy agenda and the provision of operational support to other partners and governments around the world right from the onset of COVID-19.

The United Nations in September 2020 launched the UN Comprehensive Response to Covid19 headlined Saving Lives, Protecting Societies, and Recovering Better. This is an update to the first edition of the report which was released on 25th June 2020, and is a comprehensive overview of the UN’s response to the pandemic and the way forward. In addition, policy briefs are being issued by the UN General Secretary to provide ideas to governments on dealing with the consequences of the pandemic.

The three (3) main pillars of operation of the Response are:

• Delivery of a large-scale, coordinated and comprehensive health response.

• Adoption of policies that address the devastating socioeconomic, humanitarian and human rights aspects of the crisis.

• A recovery process that builds back better.

The issue of vaccines falls squarely on these pillars as they are expected to be the most important defining factor in the fight against COVID-19.

COVAX, a global initiative co-led by Gavi (The Vaccine Alliance), the Coalition for Epidemic Preparedness Innovations (CEPI) and the World Health Organisation (WHO) and supported by the UNaims at accelerating the development and manufacture of COVID-19 vaccines and guaranteeing fair and equitable access for every country in the world. However, the question remains whether there would be enough production to meet the demand considering the fact that this pandemic is a global one.

The United Nations Secretary-General Antonio Guterres on Wednesday January 17th 2021 reiterated calls for equitable access to COVID-19 vaccines.

Apart from international aid organisations already mentioned like the UN and WHO, other specialized bodies on the global scene have shown a keen interest to contribute to the fight.

For instance, the International Organisation of Employers (IOE) and the International Trade Union Confederation (ITUC) both International Labour Organisation (ILO) member groups, have issued a joint statement highlighting the adverse economic and employment impacts of the pandemic with a call for urgent action to stem the negative tide of the disease.

Public Perception of Vaccines

Governments and citizens around the world have launched into various actions in the fight, from lockdowns, to strict adherence to masking and social distancing protocols which yielded remarkable success in nations like Australia and New Zealand, to vaccinations currently ongoing in the United Kingdom (UK) and United States of America (USA) and other countries.

The Government of Ghana is implementing the COVID-19 preventive protocols and, as stated earlier, has indicated that,plans are advanced to procure seventeen million six hundred thousand (17,600,000) doses of COVID-19 vaccines by the end of June, with the first doses arriving in March. This communiqué has courted varied opinions; some industry practitioners are of the opinion that it may delay till mid-2021.

Generally, there is no glaring religious belief or socio cultural practice that is expected to serve as a possible barrier to the acceptance of a COVID-19 vaccine amongst the Ghanaian populace. Knowledge about vaccines is widespread among many Ghanaians. The use of vaccines to protect people against diseases is not a recent occurrence.

According to the Health Minister Dr Kwaku Agyemang Manu, in his press brief on measures against Covid 19, on February 19th 2021, the use of vaccines in Ghana against infectious diseases has been with us for about seven decades now.

With the belief that the COVID-19 vaccine will be as efficacious as other Expanded Programme on Immunisation vaccines already in use, citizens are generally optimistic and anxiously awaiting its arrival, on orderto be vaccinated against the deadly virus. However, some are hesitant to accept the idea of a vaccine imported from countries that are worse hit by the pandemic.

There is the belief among a section of Ghanaians that “the whiteman” wants to experiment with the COVID-19 vaccine on Africans. This belief can be dispelled with intensive public education and sensitization of the general public by a collaborative effort of major stakeholders such as the Ministry of Health (MOH), Ministry of Information (MOI), and National Commission on Civic Education (NCCE).

It is however, worthy to note that the President in his address to the nation (Update Number 23) stated that “Ghana is not going to be left behind in having access to the vaccines" and further noted that he was "aware of the anxieties relating to the safety and efficacy of newly-developed vaccines".

Whether or not vaccination should be mandatory

The question to grapple with and clearly begs for answer is whether a citizen may refuse or decline vaccination after frantic efforts by the Government of Ghana to secure vaccines for its citizens in order to fulfill its mandate of protecting them.

Thus, can the vaccination be made mandatory for all citizens?
In answering that, it can be seen that the question reveals and throws up a healthy and interesting discussion on the right of a citizen of Ghana to possibly refuse or decline a vaccination for personal and private reasons or on grounds of religious beliefs as against the State’s or government’s powers and duty to ensure public health.

It was therefore not surprising that in the nascent stages of the COVID-19 pandemic, the Director-General of the World Health Organization, in his opening remarks at the media briefing on COVID-19 on 11th March, 2020, said as follows;
“We know that these measures are taking a heavy toll on societies and economies, just as they did in China. All countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights”.

The above words from the head of the World Helath Organization is a clear acknowledgment and concession that despite the debilitating effects of the COVID-19 pandemic and the desire and efforts to deal effectively with it, by both legal and medical means, the rights of the citizens of the world, including Ghanaians should also be given attention.

Some a little over a century ago, the brilliant and inimitable Cardozo J ( as he then was ) in the New York Court of Appeals case of Schandorf v Society of New York Hospital 1914 105 N.E. 92 held inter alia that every human being of adult years and sound mind has the right to determine what shall be done with his own body.

Meanwhile, Article 14 ( 1 ) of the 1992 Constitution also guarantees the personal liberty of the Ghanaian. In addition, Article 21 of the Constitution also guarantees rights such as freedom of thought, conscience and belief as well as freedom to practice any religion and to manifest such practice.

It may therefore be argued that on the basis of the above-mentioned Constitutiona provisions and case law, a Ghanaian can have the right to refuse, reject and decline being vaccinated if he thinks or forms the view he does not want to, or for religious beliefs such as is generally known of a section of Christians whose beliefs and doctrines do not accept them to be given blood transfusions.

Despite the above general notions of the fundamental human rights of a citizen, it must be noted that the Constitution, as the grundnum or the supreme law of Ghana, makes the enjoyment of personal liberties and rights subject to the rights and freedoms of others and for the public interest.

That suggests that even if the Constitution would guarantee for a citizen in the exercise of his religious rights to refuse or decline being vaccinated, however, the same may be overridden by public interest considerations.

That brings into the fore the powers and duty of the State acting through the government to make vaccinations compulsory if it would be in the public interest and on public health grounds.

In Ghana, the Public Health Act, 2012 (Act 851) regulates vaccination in the country. This section highlights provisions in Act 851 which speak to the issue of whether or not vaccination should be mandatory.

Section 20 of the Act provides that a medical or veterinary officer in any public service is considered as public vaccinator.

Notably, vaccinations are free of charge and are to be administered to people who present themselves to be vaccinated. This has been succinctly provided for in section 21 of Act 851 as follows;

“(1) A public vaccinator shall vaccinate, free of charge, persons who present themselves or are presented for the purpose, or persons who are or become liable to be vaccinated.

(2) Subsection (1) does not apply where, vaccination would be injurious to health, or where there is satisfactory evidence that a person is already successfully vaccinated or otherwise has natural immunity to the disease”.

It can therefore be observed that where the vaccine has been tested and will be injurious to the health and safety of an individual, such vaccination must not be administered to the individual.

Furthermore, Section 31 of Act 851 clothes the Minister responsible for Health with power to make regulations by legislative instrument to provide for
a. the times and places of attendance for the purposes of vaccination;
b. the evidence of attendance for the purposes of vaccination;
c. the supply of vaccines to public vaccinators;
d. the methods of vaccination by public vaccinators;
e. the follow-up of persons for adverse reaction and the appropriate management;
f. the functions of assistant public vaccinators and the limitations and conditions under which those functions are to be performed;
g. the payment of fees under this Part; and
h. any other matters necessary for the purpose of vaccination.

Likewise, Section 22 of Act 851 provides as follows:

“(1) The Minister may by executive instrument, generally or with reference to a particular district, area, or place or with respect to a particular class or classes of persons, order the persons to whom the instrument applies who do not produce satisfactory evidence of successful vaccination, to be vaccinated by a public vaccinator, unless in the opinion of the public vaccinator the vaccination would be injurious to health.

(2) The instrument may prescribe at what age a person is liable to a penalty for non-compliance with the terms of the instrument and who is liable where the person who fails to be vaccinated has not attained that age”.

Also, Section 25 (1) of Act 851 stipulates that:

“(1) A public vaccinator may

(a) enter a house, a yard or compound or a building or structure in an area prescribed by the instrument and inspect a person found in that place on any day, or as agreed between the public vaccinator and the community leaders between the hours of six in the morning and six in the evening, and
(b) vaccinate that person unless satisfied that that person is already successfully vaccinated or otherwise has natural immunity to the disease, or unless the vaccination would be injurious to health”.

Section 28 of Act 851 also provides that: “A public vaccinator who has vaccinated an adult or a child, and has ascertained that the vaccination has been successful, shall record the vaccination in the appropriate form and shall issue a certificate in the Form set out in the First Schedule where an application for the certificate is made by the adult or the parent of the child.”

A critical analysis of sections 20 and 21 of Act 851would lead to the conclusion that, a qualified health official may administer vaccines to citizens at no cost to such persons. The vaccination could be made compulsory for both adults and children whereby a refusal would attract a penalty if the Minister of Health issues an Executive Instrument for that purpose per section 22 of Act 851.

Besides, section 25 authorizes the health officials to enter homes and buildings to administer vaccines to citizens upon the issuance of an Executive Instrument.

Sufficient provision has been made to identify and distinguish persons who have successfully vaccinated from others by the issuance of a certificate as stipulated in section 28 of Act 851.

Lastly, section 30 makes non-compliance with the provisions of Part Two of Act 851 an offence liable on summary conviction to a fine of not more than fifty (50) penalty units or to a term of imprisonment of not more than three (3) months or to both.

Notably, where the obstruction of a public vaccinator in the performance of their functions continues after conviction, the person will be liable to pay a fine of not more than 10 penalty units for each day during which the failure continues. From the foregoing, it can be noted that there is legislative support for vaccination of the citizens in the event that government decides to do so.

Flowing from the above discussions, the argument may be made that in a contest between personal rights of an individual to refuse to take the COVID-19 vaccines versus public health and public interest considerations/grounds, the latter would hold sway; perhaps except in a case where medical or scientific proof can be adduced to show that the effects of administering the vaccination into the body of the person refusing it would be far more harmful than not administering it.

The way forward

Considering the current trend of the second wave of COVID-19 which is more severe, there is the need to race against time in order to save the lives of as many citizens as possible. Governments around the world have adopted various measures to curb the transmission of the virus including lockdown, to strict adherence to masking and social distancing protocols and vaccinations.

There is evidence to the effect that the COVID-19 preventive measures are not strictly being adhered to by a considerable number of the citizens in Ghana. Although it may be argued that the individual has a right of choice, that right ends where another citizens right begins.

Consequently, the interest of the majority is paramount and should be protected by issuance of an Executive Instrument (EI) by the Minister of Health as provided for by Act 851 to ensure strict adherence to all protocols and measures including vaccination.

Conclusion

The first known infections of COVID-19 were from Wuhan, China in 2019 and eventually spread throughout the world. The immediate response was the COVID-19 preventive protocols including social distancing, wearing of mask and regular washing of hands were propagated worldwide to help contain the rate of transmission.

Currently, vaccines including those from Pfizer-BioNTech, Moderna and Oxford-AstraZeneca have been produced, and are being administered to help stem the virus. Further research and clinical trials also continuing in several laboratories across the world.

In this era of global pandemic, the government can and must exercise its powers through Act 851 to administer vaccines to each citizen, where the need arises, in order to protect the entire populace. It is de rigueur.

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