‘Professor Fataar’s argument of gentle persuasion is, in my humble view, unconvincing, to the extent that it assumes as a self-evident truth that the vaccines across the entire spectrum of COVID-19 vaccines are lifesavers, without any serious side effects’, writes ADVOCATE ANWAR ALBERTUS.
WHILE it was not my intention to become involved in a polemic concerning the question whether one should or should not vaccinate, I feel impelled to express a few thoughts about the article authored by Professor Aslam Fataar under the heading ‘Should the unvaccinated be denied entry to mosques?’ which was published on the Muslim Views website on September 21, 2021.
Before I express my humble views on the matter, I deem it important to say upfront, lest it be said that I have succumbed to fake news, that I do not for one moment deny the reality of the COVID-19 virus, along with the illness and death that it has wrought in its wake. I am, furthermore, fully aware of the sterling work performed by medical practitioners and other health professionals in seeking to combat this veritable scourge, and laud them for that.
As the heading to the article shows, Professor Fataar does not simply address the niceties of people’s right to choose whether to be vaccinated or not, he proceeds to deal with the very vexing question whether or not people who refuse to be vaccinated against the COVID-19 virus should be dragooned into being vaccinated on pain of being denied access to various places such as mosques, universities and other places of public resort.
While Professor Fataar admittedly does not argue in favour of compulsory or mandated vaccination, he does, however, seek to encourage everyone to get vaccinated before they enter public places like schools, mosques and shops, arguing in the process that educational, media and other tactics of persuasion and education must be prioritised to spread the overall health and welfare measures in which the message of vaccination is key. He, however, contends that banning persons from attending mosques may be too blunt and that, given the considerable number of people who refuse to take the vaccine in our community, ‘we should keep a line of mercy and guidance open to everyone in our community’ … ‘persuasion via education is critical. We should build solidarity alliances and influence our communities to advance our pro-vaccination educational campaigns and religious messaging.’ [My emphasis].
Reading between the lines, it would appear that the thrust of the article is not so much concerned with advancing the common good of the hesitant ones in the community but rather with the protection of the health of the ones who have already been vaccinated. This is confirmed by the author’s acceptance without more that the so-called vaccine hesitancy in the Muslim community constitutes a challenge to those who have already been vaccinated. This assertion classically begs the question, insofar as it is posited on a number of assumptions which the author has not at all essayed to interrogate and prove, whether by reference to accredited studies on the subject, the effectiveness and safety of the various COVID-19 vaccines available in the market or otherwise.
Given the fact that the author contends that the challenge is to those who have been vaccinated, to convince those who have not been vaccinated, to undergo vaccination, it is not insignificant to note that the number of people who have, according to the most recent reports, been fully vaccinated up to now is 7,91 million, which represents only 13,5 per cent of our total adult population of 59,62 million. These statistics are rather telling within the context of the discourse as to whether people who have not been vaccinated should be compelled by those who have, to submit to vaccination. On the present numbers, as to who have been vaccinated, there can be little doubt that compelling the so-called hesitant ones to be vaccinated will, on a macro scale (leaving aside for the moment, the Muslim community), be tantamount to allowing the minority in this country to dictate to the majority, which, needless to say, is undemocratic.
Professor Fataar’s argument of gentle persuasion is, in my humble view, unconvincing, to the extent that it assumes as a self-evident truth that the vaccines across the entire spectrum of COVID-19 vaccines are lifesavers, without any serious side effects, whether in the acute, medium or long-term phases. Contrary to this assumption, there is more than sufficient clinical and anecdotal evidence of people dying from debilitating symptoms or contracting the virus again, after taking the jab.
Supplementary to this is the fact that there are countless physicians and academics across the various disciplines within the field of medicine, who are of the considered view that the COVID-19 vaccines will, over the next two to three years, have serious side effects for those who have been vaccinated. One of the concerns which I, accordingly, have with the article is that it does not deal with this divergent body of opinion within the medical fraternity. It would appear that it is simply relegated to oblivion under the guise of fake news.
Professor Fataar further argues, as a general proposition, that the decision to close any premises applies to situations where there is a likelihood of spreading the virus in close contact situations, such as schools, universities etc. While this is admittedly so, the problem with this argument is that, at present, the COVID-19 third wave seems to be dissipating. However, as the author himself admits, there are established ways of mitigating this risk, which are manageable by those in control of these places, such as making compulsory the wearing of masks, sanitising the hands and maintaining safe distances. In addition to these safety protocols, many mosques hold two sessions for the Friday compulsory congregational prayers in order to facilitate appropriate social distancing.
Professor Fataar further contends that the decision about limiting mosque access to the vaccinated must balance the need to secure the conditions to guarantee the right to life with showing compassion and mercy to those who may hold a different view. Here again, the author assumes, without empirical evidence, that vaccination guarantees without more, the right to life. In short, he seems to uncritically accept that the vaccine is an unqualified panaceum for the COVID-19 virus. He adopts this proposition without drawing on any accredited studies, which then leads him ineluctably to conclude that the only factor weighing in favour of the so-called hesitant ones is the compassion and mercy of those who have been vaccinated.
Professor Fataar’s thesis, unfortunately, does not only trivialise the counter-argument of those who refuse to be vaccinated, it is also unduly condescending towards them insofar as it assumes that their decision not to vaccinate is based on ignorance and/or simple sentiment and/or bigotry and/or religious fervour. His thesis, moreover, overlooks the fact that there is no credible evidence that all or even most of those who have been vaccinated did so willingly and with informed consent. On the contrary, there is evidence to the effect that many of those who have been vaccinated were coerced into doing so by their employers. On this aspect of the matter it should be observed that there is a legal distinction between consent and submission. The following simple example of this distinction will suffice: a robber cannot be heard to say that his victim consented to giving him his wallet when, in truth, he held a gun to the victim’s head. Should Professor Fataar require proof of employer coercion, I will gladly furnish him with the name of an attorney, who specialises in labour law, who has received countless complaints in this regard.
Professor Fataar says that legal scholars have argued that compulsory vaccination would pass constitutional or legal muster. However, I respectfully disagree. The mandating of vaccination of the so-called hesitant ones will, in my respectful view, not pass constitutional scrutiny for a number of reasons, one of which is that, in terms of the limitation clause in our Constitution, a factor to be taken into consideration before any fundamental right is limited, is whether there are less restrictive measures which can be adopted to achieve the end being sought.
As Professor Fataar himself concedes, there are indeed less restrictive measures which can be adopted to mitigate the spreading of the COVID virus, namely, compulsory sanitising of hands, the wearing of face masks and social distancing. In addition thereto, most public places require, as a safety measure, the taking of one’s temperature before admission. Furthermore, as already adverted to herein, many mosques, at the compulsory congregational prayers on Fridays, hold two sessions in order to facilitate adequate social distancing.
In sum, aside from the fact that there are less restrictive means that can be adopted as a counterweight to mandating people to submit to the taking of a COVID-19 vaccination, an additional fact which militates against any such mandate is that there is, within the medical fraternity, a not insignificant body of opinion against the propriety of being vaccinated. It is the latter fact which I believe really bedevils the entire question whether it is prudent or not to take the jab. On this issue, I pause to observe that, in terms of section 12(2)(c) of our Constitution, everyone has the right to bodily and psychological integrity, which includes the right not to be subjected to medical or scientific experiments without their informed consent.
I, for one, have not sought to persuade anyone in my family to decide one way or the other. The matter is, for me, strictly one of personal choice based on informed consent.
In conclusion, while I do not accept as convincing the argument sought to be made out by Professor Fataar for the setting afoot of campaigns to urge the so-called hesitant ones within the Muslim community to take the jab, I do appreciate his softer approach, as opposed to the hard-line attitude of others, especially amongst the Muslim clergy, who are agitating for mandated vaccinations and exclusion from mosques of the unvaccinated.
M A Albertus SC is a practising advocate at the Cape Bar, and former chairperson of the Cape Bar Council and former acting judge of the Western Cape High Court.