By Rumbidzai Francisca Zengwa
On the 3rd of February 2021, the Zimbabwe Human Rights Association (ZimRights) filed an urgent application with the High Court seeking a court intervention to compel the government of Zimbabwe (GoZ) to make public the COVID-19 vaccine roll-out strategy. On the 5th of February, the matter was removed from the urgent court roll. Justice Chatukuta ruled that the matter was not urgent and that it must be placed on the ordinary roll. The COVID-19 pandemic has killed over 2 million people worldwide and over 1300 here in Zimbabwe, including some members of the honourable court. In only 30 days, 6 doctors were killed while hundreds of health workers have tested positive. The economy has screeched to a halt. The judge still thought it is not an urgent matter.
Zimbabwe was placed under the national lock down for the first time on 30 March 2020. Since then there has been a series of national lock downs with the level varying from level 1 to four which saw the application of different restrictions. These lock downs have destroyed livelihoods inadvertently limiting the right to health and life.
Since the confirmation of the first case of Covid-19 in Zimbabwe, in March 2020 the right to heath care which is guaranteed by the constitution of Zimbabwe, regional instruments and international instruments has been continuously eroded for ordinary citizens
In light of the increasing cases of COVID-19 infections and the emergence of the new strains of COVID-19, States from the regional community and the international community have strategized on ensuring that the right to the most attainable health is guaranteed through the use of vaccines. Cognisant of the need to advocate for the promotion and protection of the right to health, and the subsequent impact on other rights which are closely linked like the right to life, ZimRights approached the courts for intervention.
Section 76 of the Constitution of Zimbabwe guarantees the right to health. It provides that every citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services. The Constitution further creates an obligation for the State to take reasonable legislative and other measures to achieve the progressive realisation of the rights set in the Constitution
Our Constitution is grounded in international law. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) obliges states to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The covenant outlines some steps for the realisation of this right which include the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would ensure to all medical service and medical attention in the event of sickness. These provisions are in tandem with Article 16 of the African Charter on Human and Peoples’ Rights (the Charter). The Charter states that every individual shall have the right to enjoy the best attainable state of physical and mental health. It creates an obligation for states to take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
These laws and principles upheld the world over have been carefully crafted into our constitution for times as this. They are a human rights issue. The right to health, emphasizes the link of health status to human dignity, non-discrimination, justice, and participation. The “enjoyment of the highest attainable standard of health” has been recognized as a “fundamental right” by the international community since the adoption of the Constitution of the World Health Organization (WHO) in 1946. Failure to prioritise the right to health adversely impacts the enjoyment of other rights such as the right to life and the right to human dignity. ZimRights seeks to ensure that the government of Zimbabwe prioritises the right to health.
This is not the first time in history that the Courts have been asked to jump into the arena to protect an important right. On 10 December 1998, a small group of activists in South Africa launched the Treatment Action Campaign (TAC). The consensus within the group was that equitable access to health care, and in particular medicines for HIV, is a human right. Over two decades later, this has become one of the most successful movements at bringing real change in the realisation of the right to health and transforming the use of the law to enforce human rights. The movement taught us that in instances where the government fails to actualise socio-economic rights, the courts have the task to interrogate and to insist that the state’s failures be redressed. It was from this wisdom that the TAC successfully litigated against the government of South Africa, to force the government to make available an important drug (Nevirapine) to prevent mother-to-child HIV transmission, leading to what we now know as judicial enforcement of socio-economic rights.
Very few diseases have had an effect as devastating as HIV/AIDS. But we can agree that COVID-19 has turned our lives up-side-down. Realising this, in November 2020, the United Nations Committee on Economic, Social and Cultural Rights issued a Statement on universal and equitable access to vaccines for COVID-19 in which it emphasised that every person has the right to have access to safe and effective vaccine. In the statement, the Committee gives further guidance on what the right to health, in the context of COVID 19 entails. The right to health requires States to make health facilities, services and goods, including vaccines, available, accessible, acceptable and of good quality. Vaccines for COVID-19 must not only be produced and made available, says the Committee. They must also be accessible to all persons without discrimination. The right includes ensuring that there is adequate investment in the health services infrastructure, public awareness and measures to combat disinformation.
In this statement are important guidelines, based on the foundation that access to safe and effective vaccine is a fundamental right. The actual right we are seeking to protect is the right to health, which ultimately affects the enjoyment of many other rights.
The obligations mentioned in the African Charter and the ICESCR equally apply to Zimbabwe as a member of the community of nations, bound by both the UN Charter and the African Charter. But more importantly, because our Constitution says so. When ZimRights is demanding a plan, it is not referring to pronouncements without substance. What is required is a clear plan of action, with details of implementation, timeframes and adequate funding. It is these details that prove that there is dedication and commitment to saving lives. From the plan, we can push for transparency and accountability. We can see what measures are put in place to ensure that whatever vaccine is procured is safe for the people of Zimbabwe and that marginalised communities are included in the distribution plan. In short, a clear plan tells us there is leadership in place, acting for the common good. Where the government is proving unwilling, the courts must be called to ensure that these constitutional obligation are enforced. Section 324 of the Constitution of Zimbabwe states that all constitutional obligations must be performed diligently and without delay.
Rumbidzai Francisca Zengwa is a Projects Lawyer at ZimRights. This article is part of the Peoples’ Vaccines Campaign which include ZIMCODD, Citizen Manifesto, Kubatana and Magamba Network. If you wish to comment on this article, please write to firstname.lastname@example.org To support our work, visit www.zimrights.org.zw/donate