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Wednesday, August 10, 2022

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Draconian amendments to National Health Act a violation of rights

Minister of Health, Dr Joe Phaahla. Picture: Jacques Naude/African News Agency (ANA)

Minister of Health, Dr Joe Phaahla. Picture: Jacques Naude/African News Agency (ANA)

Published Aug 3, 2022


Mogomotsi Mogodiri

Pretoria - The period for public comments on the ominous amendments to the National Health Act ends in a few days.

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The window, which was extended after outrage erupted over the limited time allocated, is a constitutionally mandated exercise that the government has to embark on if it intends to promulgate a new law or make amendments to existing ones.

It is not acceptable for the government to simply tick boxes in a compliance exercise. Hence it has to be extensive and substantial to achieve what it is intended for.

Why is it important for the public to make their voices heard on these amendments?

For two years, the country was placed under draconian restrictions, including a hard lockdown due to the Covid-19 outbreak.

The movement of people and goods was restricted under the National Disaster Management Act (NDMA) to control and fight against Covid-19. People were compelled to wear masks, practise “social distancing” and sanitise or wash their hands.

This heavy-handedness also brought devastation not only in terms of health and deaths, but also to the economy. Many businesses closed down, people lost jobs and livelihoods and countries’ economies were brought to their knees.

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With the number of positive cases and hospitalisations declining, the government lifted the NDMA Act.

This has relieved the pressure on people and the economy, and we are able to move more freely without being forced to wear masks and abide by curfews and other resolutions.

When lifting those restrictions, President Cyril Ramaphosa announced that the Minister of Health, Dr Joe Phaahla, would take steps to ensure that measures were put in place to ensure that health disasters including Covid-19 did not catch the country off guard again.

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Phaahla published the proposed amendments to the National Health Act in May this year.

The first deadline (two weeks) for comments on the proposed amendments was extended to provide South Africans time to study the proposals and make informed comments on them.

The proposed amendments are encapsulated in the following:

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u Surveillance and control of notifiable conditions as per government notice No 1882 will allow for the detention (quarantine or isolation) of people who are deemed to be positive cases, suspects or contacts. They will be subjected to any medical examination and treatment that the government wants to impose, which may include vaccination without their (informed) consent.

All people entering or exiting South Africa during a public health emergency of international concern would be forced to vaccinate or to present a negative PCR test result.

u Public health measures at all points of entry into the country as per government notice no 1883 will lead to any person suspected of being sick with a communicable disease (while departing from South Africa) being subjected to a forced medical examination and quarantine or isolation in a state-run quarantine or isolation facility against their will. The government would have total control of how and when those quarantined would be released, or not.

u The provisions regarding management of human remains (government notice No 1884) will prohibit the preparation and viewing of the body of a loved one and prohibit night vigils and after-funeral gatherings.

u Regulations relating to environmental health (government notice no 1885) will declare any activity the government deems a danger to human health and to prohibit “overcrowding”, that it deems may cause an environmental nuisance or endanger human health, on any premises, undesirable or unlawful.

Mogomotsi Mogodiri is an ANC member, former political detainee, ex-MK combatant and a media specialist. Picture: Supplied

The proposed amendments will form an integral part of the National Health Act after August 5 unless the public registers, through written submission to the national Health Department, its strong opposition to them and rejects them.

The minister will have the power to declare a pandemic, shut the country or identified regions down, forcefully quarantine people and enforce vaccines or medication without soliciting consent.

Anyone opposing these measures can be imprisoned for up to 10 years or forcefully taken by the police into an isolation camp or quarantined, to be given treatment or be vaccinated without consent.

In essence, South Africans will be stripped of their rights since the draconian measures will empower the health minister, health officials and law enforcement agencies to ride roughshod over them.

Should South Africans not object, the proposed amendments will give the minister and, by extension, government, the draconian powers to eternalise some of the provisions of the NDMA.

In its current form, the NDMA can only be activated and enforced during a genuine disaster, and not as a permanent control mechanism.

By introducing these regulations while sidestepping Parliament, the government is attempting, by stealth, to obliterate our rights and freedoms of choice, religion and bodily integrity.

This NDMA provides for sufficient safeguards against disasters as long as it is not abused or used as an instrument to evade accountability.

The lived experiences of its application has given us lessons to learn from. Instead of the government introducing “amendments” that give it draconian powers that border on illegality and unconstitutionality, it should rely on the NDMA for any disaster eventualities.

Forced medical examination and medication, and quarantine without consent or an option to self-isolate, are measures that violate our rights as provided for in the Constitution and Bill of Rights.

These unnecessary measures are also against our country’s democratic ethos.

Medical examination and medication should remain optional so as to give practical expression to our right to choose what is best for us.

It is also unfair and unreasonable to expect health professionals to enforce an unjust law. They have taken an oath and they cannot be compelled to break it. The same applies to law enforcement agencies who have pledged to “serve and protect” and to uphold (just) laws.

South Africans have the right and power to ensure that their government acts within the confines of the law and Constitution.

Through submitting their objections to these amendments, the public will be doing their patriotic duty, ensuring that human rights are not violated or taken away at whim, and that the government remains true to its obligation of protecting, defending and preserving our country’s Constitution.

Even at this late hour, the government still has an opportunity to rethink its approach to disaster management without resorting to draconian measures.

It would be well advised to abandon these amendments. Instead, lessons should be learnt from the past two years, and should strengthen our early warning and other mechanisms as per the provisions of the NDMA.

Any other manoeuvres will only point at the mischief of a government that has dictatorial inclinations.

South Africans must object to this latest attempt to violate our rights.

This rogue or autocratic behaviour should not be allowed as it would open the floodgates while undoing the limited progress made in terms of building and nurturing a human rights culture in our country.

Pretoria News