SADC remains conspicuously silent on vaccines as many continue to die

By the beginning of May 2021, the majority of Southern African countries, with the exception of Mauritius and Seychelles, had not fully vaccinated even one percent of their populations against Covid-19. The sub-region is now entering a particularly perilous stage of the pandemic with the arrival of the so-called Indian and UK variants having been confirmed. Yet the Southern African Development Community (SADC), comprising 16 Southern African Member States, has provided no meaningful guidance to accelerate this sluggish roll-out. 

Working together with Oxfam and Amnesty International, the International Commission of Jurists (ICJ) is coordinating a group of human rights defenders and public health experts from SADC countries aiming to improve equitable vaccines in the region. To assist with this advocacy, on 6 May 2021 the ICJ published a briefing paper detailing common issues obstructing vaccine access in the SADC, based in significant measure on information provided by these defenders and experts. What is clear is that although Covid-19 is a global pandemic, its impact has been aggravated in southern Africa by the failure of governments to prepare and respond, individually or collectively. 

The result is the creation of what is a fast emerging new political category of persons we describe as “the unvaccinated”: those whose daily lives inordinately continue to be dictated by the pandemic, even as the lives of those in many countries, particularly in the Global North, return to some semblance of “normality”. 

Failing to do what the SADC was created for

There are a multitude of global challenges impacting the dire vaccine scarcity in Southern Africa. One is the failure of some powerful states to agree to allow the World Trade Organisation (WTO) to issue a waiver on intellectual property rights. Although there are positive signs that some of this resistance may be cracking, to date no consensus has been found despite more than seven months of negotiations. However, this and other obstructions at the global level to affordable vaccine access cannot be allowed to distract from the political and moral failures of SADC member states to comply with their own obligations under international human rights law. 

In simple terms, everyone must enjoy a right to access Covid-19 vaccines as a necessary component of the protection of the rights to health, life and equal benefit from scientific progress. These obligations are set out, for example, in the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights. All states are required, individually and through international cooperation, to provide adequate and equitable access to Covid-19 vaccines. In this, the SADC has a vital role to play.

Contrary to the apparent understanding of at least some of its member states, the SADC is not merely a platform for economic collaboration. The SADC’s founding treaty sensibly sets combating deadly communicable diseases, among which it must now count Covid-19, as one of its founding objectives. Human rights obligations too are at the core of the SADC’s mandate. 

In times where southern Africa faces particularly acute public health challenges, the SADC health protocol requires the member states to engage in “effective regional collaboration and mutual support” to “coordinate regional efforts on epidemic preparedness, mapping, prevention, control and where possible the eradication of communicable and non-communicable diseases”. In relation to the right to Covid-19 vaccines and medicines, Article 29 of the SADC health protocol addressing pharmaceuticals requires states to “cooperate and assist one another” in the “production, procurement and distribution of affordable essential drugs”. 

Silent

As we have pointed out previously, despite acknowledging these imperatives in late 2020, the SADC has remained conspicuously silent about vaccine access since the actual emergence of Covid-19 vaccines. It has still not provided concrete guidance on procurement or roll-out measures and has taken no measures to ensure the accountability of member states for their systematic failure to protect the human rights of their own inhabitants.  

Just last month SADC MPs discussed the necessity and importance of member states to employ flexibilities of international intellectual property law to advance access to Covid-19 vaccines medicines and diagnostics. The Trips waiver, while certainly necessary, is insufficient by itself to ensure the realisation and protection of human rights of all people living in the SADC. It cannot replace meaningful coordination between and within SADC member states.  In short, the SADC is not doing what was created to do. 

Ignoring human rights, common sense

The SADC’s willingness to ignore human rights accountability is not new. Indeed, such is the apparent contempt of the SADC for human rights that it has dismantled and disabled the SADC Tribunal, which had the mandate to provide access to effective remedies for the violations of human rights in the region.

In the context of Covid-19 and vaccine access more specifically, this abdication of human rights responsibility had significant consequences. The SADC has failed to intervene even where member states have ignored their international obligations, public health policy, and common sense, thereby jeopardising the lives and health of their people. 

Indeed, the SADC has stood by without comment while the Tanzanian government, until very recently, rejected the entire existence of Covid-19 on its territory, exposing its own population and that of neighbouring countries to the life-threatening virus. 

Similarly, the SADC failed to exercise its responsibility to counter the unscientific approach taken by the Madagascar government, which for months actively encouraged an organic plant-based “cure” and refused to procure any Covid-19 vaccines. This not only endangered the lives of its inhabitants but has also promoted a pernicious culture of vaccine hesitancy. 

Disappointingly, this lack of action by the SADC has prevailed despite a loud chorus of public criticism and condemnation by inhabitants of their countries and local, regional, and global civil society. Meanwhile, individuals within the SADC are still left with no recourse to the SADC Tribunal for harms to their human rights caused by such failures in leadership. 

The dismal lack of effective leadership and collaboration demonstrated by the SADC is unfortunate given the potential that the institution possesses by virtue of the voluntary membership of national stakeholders. As noted by the South African Constitutional Court in its 2018 judgment in relation to the dismantling of the SADC Tribunal, SADC member states should relate to each other as “sister countries” with an “unshakeable purpose of contributing to the realisation of a more just, equal, peaceful, human rights-oriented, truly democratic order and shared prosperity”.

Instead of the unshakeable purpose of the SADC, the human rights of the unvaccinated appear to not be a significant concern or a guide for policy to the SADC. They are simply not on the agenda. 

What next? 

The SADC has failed to take on any significant role in the procurement or distribution of lifesaving Covid-19 vaccines. In this context, the ICJ’s recently published report makes specific recommendations to the SADC and its member states to ensure compliance with its human rights obligations. 

In the face of deadlier and more contagious Covid-19 variants, the SADC can no longer afford to remain silent: it must speak with one voice and do so in clear and no uncertain terms. The SADC must urgently step up and take responsibility in the fight against Covid-19 by ensuring sub-regional collaboration and coordination to accelerate rapid vaccine procurement and distribution throughout the region. 

Furthermore, it must actively counter the abdication of human rights responsibilities in specific countries and provide clear guidance on member states’ obligations to respect, protect and fulfil their populations’ human rights. As the ICJ’s report shows, this will require a range of different interventions, including that all member states develop, publish and publicise vaccine acquisition roll-out strategies and plans. Few have done so. 

Finally, the SADC should ensure access to effective remedies for human rights violations, both in the context of Covid-19 and beyond, by taking long overdue and concrete steps to restore the jurisdiction of the SADC Tribunal to hear individual human rights complaints.

Should the SADC fail to replace silence with action, southern African countries will remain among the “unvaccinated” and we will continue to mourn the loss of too many lives including those of our family, friends, colleagues, and neighbours.

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Alicia Quijano-Evans
Alicia Quijano-Evans is consultant at the International Commission of Jurists and recent graduate in Law and International Relations.
Tim Fish Hodgson
Tim Fish Hodgson is a legal adviser on economic, social and cultural rights for the International Commission of Jurists
Tanveer Jeewa
Tanveer Jeewa is the legal and communications officer at the International Commission of Jurists - Africa Regional Programme and a managing editor and researcher at the African Legal Information Institute (AfricanLII). She works mainly on issues of South African constitutional law and international human rights law. She has recently completed her LLM in Public Law at the University of Cape Town and was previously a law clerk at the Constitutional Court for Justice Theron.

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