By Fox Odoi-Oywelowo

In the wake of the devastation from the COVID-19 pandemic, scientists around the world work hard to find lasting solutions to the emerging problems. Governments on the other hand, take those advisories and implement them in real-time, from the closure of schools to lockdowns and now immunisation.

Immunisation is a proven tool for controlling and eliminating life-threatening infectious diseases. There are vaccines for over 20 life-threatening diseases. Immunisation is estimated to avert two to three million deaths each year from diseases like diphtheria, tetanus, pertussis, influenza, and measles. Vaccines are also critical in the prevention and control of infectious disease outbreaks.

As a critical component of primary health care, immunisation is an indisputable human right. The World Health Organisation also considers it one of the most cost-effective health investments and creates strategies to make it accessible even in the most remote areas and to vulnerable populations.

Despite the effort, over 24,000 children die of vaccine-preventable diseases every day around the world. February 2016 WHO report reveals that one in five Africa children still do not receive all of the most basic vaccines needed.

It is even worse in the case of vaccination against COVID-19, with only 6.9% of the eligible population fully vaccinated plus an additional 3.3% partially vaccinated compared to the global average of 42% and 12% respectively. (According to ourworldindata.org – Nov 21st, 2021).

Uganda continues to lag behind with only 1.9% fully vaccinated and 6.2% having received the first of two doses. The target was to immunise 22 million eligible Ugandans starting with 4.8 million people, including frontline workers and vulnerable groups by December 2021.

There are a number of reasons for this disparity, including vaccine inequality. However, in the case of Uganda, this may not be the issue as the government has now received 15.5 million doses (total), a number expected to grow to 31.9 million doses by the end of December 2021. There will be enough vaccines for the 22 million people target in combinations of one or two doses as the case might be.

To understand why Uganda’s vaccine uptake remains very low, one needs to examine and address challenges closer to home. There is long-standing vaccine hesitancy due to fears of side effects. Some groups believe vaccines lead to infertility while others imagine vaccines are made out of animals (like pigs) and taking one will make a child behave like an animal. Historical mistrust of ethnic minorities and marginalised groups in public authorities and the healthcare system is a significant contributing factor. Most of this can be attributed to cult practices across the country and misinformation on social media platforms.

In the case of SARS-COV-2 (COVID-19) vaccines, their rapid and unprecedented development and approval presents an even bigger challenge and seems to have exacerbated the vaccine hesitancy problem. Conspiracy theories about vaccines as a means of acquiring authoritarian control have, in part, created a whole new generation of anti-vaxxers.

It is, therefore, incumbent upon the Government to ensure that its citizens are immunised, but within the confines of the law. Developing and updating legal support for vaccination becomes increasingly important as new, costlier vaccines come into use and the economic value of immunised societies increases.

Uganda’s Vaccination Legal Framework

Uganda’s vaccination legal framework is hinged mostly on the Immunisation Act, 2017 which provides for immunisation of children, women of reproductive age and other target groups against immunisable diseases.

The law stipulates compulsory vaccination of children below five years, enumerating a schedule of diseases against which vaccines must be taken at that age. It requires the production of an immunisation card before admission into daycare, pre-primary or primary education.

It further mandates vaccination of girls and women (ages 15 – 49 years) against tetanus, taxing parents of eligible minors to ensure they are appropriately immunised. Other provisions include immunisation against the Human Papillomavirus (HPV) for children aged 10-12 years.

The state shall ensure that every Ugandan required to be immunised under the Act has access to vaccines. And a person who contravenes the provisions of the law is liable, on conviction, to a jail term of not more than six months, a fine not exceeding 12 currency points or both.

The law foresees the possibility of extraordinary circumstances for example the detection of new infectious agents, in the event of an epidemic or in order to comply with international practices, and gives the minister responsible for health the mandate to order for the administration of vaccines by way of Statutory Instrument (SI).

It is the minister’s responsibility to determine whether the said vaccinations shall be mandatory or not and to issue guidelines regarding accessibility to and administration of vaccines in public health interest.

Finally, the law establishes an immunisation fund, housed in the Ministry of Health whose object is to purchase vaccines and related supplies, cold chains, and funding immunisation outreach activities. The fund is financed through Parliamentary appropriations, donations, and money received by way of voluntary contributions.

Vaccine mandates with relation to COVID-19

Since the beginning of 2021, there have been newly imposed vaccine mandates with relation to the COVID-19 pandemic all over the world. There are various compulsory COVID-19 vaccination requirements in the US, Canada, across Europe and Asia.

Uganda saw the beginnings of a compulsory COVID-19 vaccination regime in September 2021 when the President, while easing lockdown restrictions said schools would not re-open until “enough” students, teachers and non-teaching staff has at least got their first jab of a two-dose vaccine.

Institutions like the Parliament of Uganda have since implemented policies like ‘no vaccine, no entry’ where all MPs, staff, and visitors are required to show proof of vaccination against COVID-19 in order to access its premises. Similarly, other institutions and facilities are beginning to restrict entry to persons that have been vaccinated against the coronavirus.

These vaccine mandates have been widely debated as a Human Rights issue. What recourse will persons not willing to be vaccinated have?

Considering the novelty of the issue and the absence of comparative case law in Uganda, we benchmark on the international human rights laws where the rule is that like any other medical interventions, vaccination must be based on the recipient’s or their guardian’s free and informed consent.

The European Court of Human Rights (the Court) judgment no. 116(2021) of April 8, 2021, filed in regards to free mandatory COVID-19 vaccination in Italy establishes the general principle of mandatory vaccination, referencing schoolchildren. It affirms the need for vaccination obligatoriness in certain cases, aiming at protecting public health, thus recognising mandatory vaccination as “necessary in a democratic society”. The pronouncement specifies the criteria that national legislation must comply with, following the principle of non-interference in an individual’s private life.

This principle is detailed in Article 8 of the European Convention of Human Rights (ECHR); providing that a public authority cannot interfere with anyone exercising his/her right to private and family life, home, and correspondence except when it constitutes a necessary measure, in a democratic society, for national and public security, the economic well-being of the country, defence of order and prevention of crimes, protection of other people’s health, rights and freedoms.

The fact that this right under Article 8 is not absolute is buttressed by the case of Solomakhin v Ukraine, wherein the Court held that mandatory vaccination interferes with a person’s right to integrity protected under Article 8 of the ECHR. Nevertheless, the Court concluded such interference may be justified if considered a ‘necessity to control the spreading of infectious diseases.’

The implication of mandatory vaccination was also widely discussed in the Court case of Vavřička and Others v the Czech Republic. The case concerned domestic legislation requiring children to undergo a series of vaccinations. The policy does not physically enforce vaccination, but parents who refuse to let their children be vaccinated can be fined and unvaccinated children are excluded from pre-school. The Court held, by 16 votes to one, that the policy was compatible with the ECHR.

This judgment shows that states enjoy a wide margin of appreciation in determining vaccination policies, as long as vaccination is not forcibly administered.

In a nutshell, these cases held that States have a positive obligation to protect the health and life of their residents.

What does this mean to Uganda?

While daily new COVID-19 infections in Uganda continue to decrease, currently at 1% of the peak daily average reported in Aug 2021, we still register 2 Coronavirus deaths per day not to mention the hundreds that continue to suffer the dreadful aftereffects of a COVID-19 infection. The registered decrease may partially be due to the continued restrictions like the closing of schools, which come at an extraordinarily high cost.

The country needs to get back on its feet. Our children need to return to school. Life may never go back to what we knew, but we need to find an acceptable and context-appropriate new normal.

It has been demonstrated over a period of time that the collective survival of the human species depends in part on vaccination. It is the responsibility of every citizen to protect themselves and their neighbours by getting vaccinated. All persons 18 years and older should get vaccinated at their local Health Centre III.

To support this, the Government should continue to employ tools like providing information packages in various media, deployment of its resources for mobilisation, etc.

However, if the state cannot appeal to the responsibility and responsiveness of every citizen, then mandatory vaccination can be a perfectly legal tool to protect citizen’s health as long as it meets the set standards. The Minister for Health should execute the mandate given by law, issue the necessary Statutory Instrument, to the relevant detail; effectively make COVID-19 vaccinations mandatory for all Ugandans.

The writer is the Member of Parliament for West Budama North-East (Tororo District) Chairperson Parliamentary Committee on Human Rights Advocate of the Courts of Judicature