South Africa: Proposed amendment to health regulations risks breaching human rights

The proposed amendment to health regulations relating to the surveillance and the control of notifiable medical conditions risks breaching human rights guaranteed by the Constitution, such as rights to freedom of movement and freedom of personal security, Amnesty International South Africa said. 

The proposed regulations must be discarded and rewritten to align with the Constitution and international human rights law .

“We recognise the need to prevent and control the spread of the Covid-19 and other Notifiable Medical Conditions (NMCs) beyond the declared National State of Disaster (NSD), but we are concerned that some of the proposed amendments risk breaching human rights whilst not serving any legitimate public health aim based on scientific evidence as required under both domestic and international law,” Amnesty International South Africa Executive Director Shenilla Mohamed said. 

Amnesty International South Africa has made a submission on the proposed amendments to the Regulations Relating To The Surveillance And The Control Of Notifiable Medical Conditions in response to a call by the Department of Health for public comments on the published proposed Covid-19 health regulations outside the national state of disaster 

In its submission, Amnesty International South Africa raised a number of serious  concerns relating to the potential permanent nature of the regulations and the criminalisation of non-compliance with the regulations.

The permanent nature of the regulations

Many of the proposed regulations, notably Sections 15A (Refusal of medical examination, prophylaxis, treatment, isolation, quarantine and protocols in public areas and gatherings) and 15H (Contact Tracing), do not contain any timeframes, making them potentially permanent in nature as opposed to temporary emergency measures introduced under the NSD.

“We are concerned that the lack of clear timeframes and definitions, create uncertainty and ambiguity concerning the nature, permanency and application of the regulations which may lead to their abuse,” Shenilla Mohamed said.

Criminalisation

Amnesty International South Africa also noted with concern the punitive measures against those who do not comply with these regulations. Read together with the original regulations, those found guilty of non-compliance could be liable for a term of up to 10 years in prison, or imprisonment and a fine as determined by a court of law. 

“Longstanding international legal principles grounded in international law regarding States’ implementation of their human rights obligations require governments to avoid using criminalisation as a way to achieve public health objectives since, among other things, it usually fosters stigma and discrimination and disproportionately affects marginalised groups. Instead the focus should be on addressing the underlying determinants of health such as poverty and lack of adequate housing.” Shenilla Mohamed said. 

Amnesty International South Africa also raised concern about specific sections of the amended regulations. 

These include:

• Section 15A (Refusal of medical examination, prophylaxis, treatment, isolation, quarantine and protocols in public areas and gatherings)
• Section 15G (Criteria for Self-Quarantine and Self-Isolation)
• Section 15H (Contact Tracing)

Excessive Use of Force

Section 15A has the potential to result in  excessive use of force for non- compliance with a range of provisions, including forced admission to a health establishment, quarantine or isolation site, thereby invoking a stricter measure of enforcement than is required disproportionately impacting on human rights.

“We are concerned that the provisions of this section may embolden the use of unnecessary or excessive force by law enforcement agencies under the guise of enforcing regulations, as was seen during the Covid-19 lockdown,” Shenilla Mohamed said. 

“The use of unnecessary and excessive force can violate the right to freedom and security of the person and in the most serious cases torture or other ill-treatment and the right to life,” Mohamed added. 

“Moreover, any medical intervention must be based on the recipient’s free and informed consent in line with international human rights law.

Mandatory Vaccination

Amnesty International continues to campaign to expand access to Covid-19 vaccines for all people and against global inequality in vaccine supply. We advocate for states to develop vaccination programmes that focus on increasing voluntary uptake through effective vaccination campaigns that focus on access to accurate and timely information that empowers people to make informed decisions about their health.

Any vaccine mandate introduced should avoid the use of criminal sanctions, or

disproportionate penalties that may prevent people from realising other fundamental rights such as food or housing.

“South Africa has not met the required threshold to enforce mandatory vaccinations. We believe that measures contained in Section 15 of the existing regulations sufficiently deal with the issues of mandatory medical examination, prophylaxis, treatment, isolation and quarantine. The proposed amendments would further restrict and curtail human rights unnecessarily,” Shenilla Mohamed said.

Personal Information

In terms of section 5H, Amnesty International South Africa raised concerns that continuous collection of personal information for the stated purpose of contact tracing is both onerous and unnecessary whilst constituting an undue infringement on the right to privacy.

Earlier this year, a DoH circular recommended an end to contact tracing based on the

advice of the Ministerial Advisory Committee on Covid-19 and on evidence that only a small proportion of actual Covid-19 cases are diagnosed. The proposed regulations contradict this advice.

“The state has an obligation under Section 7(2) of the Constitution to respect, protect, promote and fulfil all of the rights in the Bill of Rights. Human rights must thus be at the centre of all prevention, preparedness, containment and treatment efforts for all NMCs, in order to best protect public health and support the groups and people who are most at risk.  

“We support the management of the Covid-19 pandemic, and future pandemics, in a manner that is led by scientific evidence and compliant with human rights. The amended regulations are a far cry from this and cannot be implemented. The Department of Health needs to do a better job. This is what everyone living in South Africa deserves,” Shenilla Mohamed said. 

Background

In April, the Department of Health gazetted an amendment to the

Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions under the National Health Act, 2003, and invited the public to comment on the proposals.  

Originally, the public was given until 15 April to comment but on 14 April 2022, Health Minister Joe Phaahla announced an extension on the submission deadline to 24 April. 

Read Amnesty International South Africa’s full submission on the amendment here.