Mandates: Statist power grab undermines personal autonomy as well as collective rights

A STATIST POWER-GRAB is on the boil. Government control of your entire life from cradle to grave is what many political pundits have in mind. Whether it is the far-left who are pursuing the end of private property ownership in order to make the state the ‘custodian of all property’, or misguided intellectuals on the right promoting vaccine mandates and grumbling meekly about the price of petrol at the pump and ignoring state-controlled fuel levies, the result is all the same.

Erosion of the fundamental, egalitarian and openly democratic principles, granted everyone in South Africa. Obliteration of personal freedom and evisceration of the core values enshrined by our constitution as a foundation stone, in what is an emancipatory charter of our Republic, has been a trend for nearly a decade.

In the rewrite of the constitutional narrative to favour personal agendas and party fortunes, (think of Gwede Mantashe and his resort to pro-fossil fuel rhetoric), an agenda is clear — the blatant capture and reshaping of our political system to allow for the wholesale reshaping and reorganisation of the national character in the image of other totalitarian dictatorships around the world, think of China, Cuba, and North Korea.

Thus Omphemetse S Sibanda writes: “It is highly problematic when individuals care for themselves and their immediate families only and do not care about the wellbeing of the entire community in which they live during the pandemic”, and by that he means the state: “If people don’t care, the state must help them to care or to grow a caring bone.” [my italics]

A community no doubt comprised of party loyalists, sycophants and acolytes?

It was my namesake CS Lewis who wrote: “Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their conscience.”

The same may be said of those who lack any conscience in the ANC, and by illustration Deputy health minister Dr Sibongiseni Dhlomo who believes “the rights of individuals not to get vaccinated for Covid-19 will be trumped by the rights of a collective who choose vaccination.”

“A collective right becomes superior to an individual right,” he claims. “We will not deny you to stay at home if you so wish but you can’t force yourself into a taxi of 10 other people who are vaccinated if you refuse to vaccinate but you want to travel with them to work.”

By which one can only presume, that the collective rights and authority to vaccinate, referred to here are whatever the party determines to be the prevailing authority and not some high-minded ideal, based upon any democratic conception of our national character. Ditto patient rights.

Freedom is not a bone you throw to a dog

It is thus that Ben Winks, a highly acclaimed legal advocate on the far-right (of winklehood), and many years my junior, and certainly too young to experience forced medical interventions under apartheid, who incorrectly and without any evidence suggests: “Does the Constitution allow compulsory vaccination? Yes: it commands it”.

Well, how incredibly patronising of these three men, (and yes one should also question why so many male voices on the subject?)

Do Sibanda, Dhlomo and Winks, et. al. seriously presume to suggest they know what is best for my family, and further, foolishly assume, they have some right in law to inject my family against their will, in violation of Article 12 (which has its corollary in article 12 of the United Nations Convention on the Rights of Persons with Disabilities), as if I do not possess free will nor any volition and am simply a ward of the state? And whatever happened to Article 13, freedom from slavery?

For the record I am not disabled, have been jabbed twice by Pfizer, but hereby lodge my objections to any coercion and removal of choice — brazen attempts to unlawfully usurp my freedom and that of my family under the ruse of collectivism and simple majoritarianism. Just about nobody is suggesting that infected persons should be free to infect others, but rather to use an analogy, there is no rationale behind forcing everyone to take ARVs merely to avoid HIV.

A civic duty is no longer a duty when it is a compulsion. A person is no longer a free individual if they are slaves to the collective will, or require another’s permission to do what is considered natural. To reiterate, mandates are ordinarily granted during elections, and constitutional mandates arise from a defence of the constitution, not a shoddy, legalistic attempt, nor a quasi political project, to rewrite and interpolate its contents.

We are not your willing slaves

All pro-mandate opinion pieces published in the public arena to date represent a dangerous resort to authoritarianism and statism, in which it is argued inter alia, the state should treat individuals as children, or worse, mere tools, in effect a sad resort to the ancient doctrine of patria potestas, or the state ‘acting as parent’, apparently in order to defend the ‘collective will of the people’.

While the rights of the person certainly need to be weighed against the rights of the collective, the issue begs the question, who are we as a nation, what is the collective will, and who claims to represent it? Our freedom is not reducible to some fratboy law school formula, (one part individual to three parts party agenda divided by collective power). Freedom includes freedom from, as in freedom from war, coercion and fear, without which there could be no democracy.

This is exactly why these proposed mandates deserve a referendum (if not a constitutional amendment) since the result represents a major shift in the democratic, antislavery narrative of the country. Switzerland recently held a referendum on the issue of limited vaccine mandates. The UK’s Sajid Javid has declared “Mandatory Covid vaccines ‘unethical’ and ‘impractical’. Our democracy could do better than to attempt to crowd out those voicing objections.

And what if we all voted for totalitarianism, servitude and the end of democracy, what then?

If one perceives that the collective will is enshrined in the constitution and not any one particular organisation nor individual, then it should follow that article 12 (Freedom and security of the person) be read with the same circumspection and deference as article 11 (Right to life) and article 13, (Freedom from Slavery, Servitude and Forced Labour).

There is a good reason why these non-derogable rights, appear right next door to each other, while our health rights are littered throughout the constitution, appearing several times under Health Care, Environment and so on.

A non-derogable right is not subject to retroactive legislation during a state of emergency and cannot simply be curtailed holus bolus via an act of parliament.

Reintroducing the death penalty would probably protect the collective from harm, but be a violation of the values referred to in the preamble. Adopting Nazism as an ideology would most likely get the trains running on time, at least for the majority of us, whilst ending multi-party democracy might result in greater efficiency, and less taxation for everyone, as would a communist dictatorship.

I am not going to repeat my previous piece on patria potestas, but you can read it here. And I also suggest you read my initial response to that other looney toon of the left, posing as a legal pundit in the media, Pierre de Vos.

There is also this piece: ‘When the pandemic ends, those unlawful mandates are going to haunt us”, one of several similar pieces published here, which might elucidate the issue.

SEE: It looks like Omicron variant causes milder illness – is this how Covid-19 becomes endemic?

End Vaccine Apartheid Before Millions More Die

By Anis Chowdhury and Jomo Kwame Sundaram

SYDNEY and KUALA LUMPUR, Mar 23 2021 (IPS) – At least 85 poor countries will not have significant access to coronavirus vaccines before 2023. Unfortunately, a year’s delay will cause an estimated 2.5 million avoidable deaths in low and lower-middle income countries. As the World Health Organization (WHO) Director-General has put it, the world is at the brink of a catastrophic moral failure.

Vaccine apartheid
The EU, US, UK, Switzerland, Canada and their allies continue to block the developing country proposal to temporarily suspend the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement to enable greatly increased, affordable supplies of COVID-19 vaccines, drugs, tests and equipment.

Meanwhile, 6.4 billion of the 12.5 billion vaccine doses the main producers plan to produce in 2021 have already been pre-ordered, mostly by these countries, with 13% of the global population.

Thirty two European and other rich countries also have options to order more, while Australia and Canada have already secured supplies enough for five times their populations. Poor countries, often charged higher prices, simply cannot compete.

Big Pharma has also refused to join the voluntary knowledge sharing and patent pooling COVID-19 Technology Access Pool (C-TAP) initiative under WHO auspices. Thomas Cueni, International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) Director General, snubbed the launch, claiming he was “too busy”.

Pfizer’s CEO dismissed C-TAP as “nonsense” and “dangerous”, while the AstraZeneca CEO insisted, “IP is a fundamental part of our industry”. Such attitudes help explain some problems of alternative vaccine distribution arrangements such as COVAX. According to its own board, there is a high chance that COVAX could fail.

Suppressing vaccine access
Despite knowing that many developing countries have much idle capacityCueni falsely claims the waiver “would do nothing to expand access to vaccines or to boost global manufacturing capacity”, and would jeopardise innovation and vaccine research.

Big Pharma claims manufacturing vaccines via compulsory licensing or a TRIPS waiver “would undermine innovation and raise the risk of unsafe viruses”. US Big Pharma representatives wrote to President Biden earlier this month claiming likewise.

Both Salk and Sabin made their polio vaccine discoveries patent-free, while many contemporary vaccine researchers are against Big Pharma’s greedy conduct only rewarding IP holders regardless of the varied, but crucial contributions of others.

Big Pharma’s price gouging
Vaccine companies require contract prices be kept secret. In return for discounts, the EU agreed to keep prices confidential. Nonetheless, some negotiated prices were inadvertently revealed, with a UNICEF chart listing prices from various sources.

Reputedly the cheapest vaccine available, Oxford-Astra Zeneca’s is sold to EU members for around US$2 each. Although trials were done in South Africa, it still pays more than twice as much, while Uganda, even poorer, pays over four times as much!

US negotiated bulk prices, for Moderna and Pfizer-BioNTech vaccines, are much higher, at US$15.25–19.50 per dose in several contracts, yielding 60–80% profit margins! Moderna will charge the rest of the world US$25–37 per dose.

Quite understandably, most developed countries opposing temporary TRIPS suspension have provisions in their own IP laws to suspend patent protection in the national interest and for public health emergencies.

Canada, Germany, France and others have recently strengthened their patent laws to issue compulsory licences for COVID-19 vaccines and drugs. European Council President Charles Michel announced that the EU could adopt “urgent measures” by invoking emergency provisions in its treaties.

Similarly, in the US, 28 US Code sec. 1498 (a) allows the government to make or use any invention without the patentee’s permission. To handle emergencies, the 1977 UK Patents Act (section 55) allows the government to sell a patented product, including specific drugs, medicines or medical devices, without the patentee’s consent.

When avian flu threatened early this century, the US was the only country in the world to issue compulsory licences to US manufacturers to produce Tamiflu to protect its entire population of over 300 million. The drugs were not used as the virus was not brought over either Pacific or Atlantic Oceans.

Biden must act
By helping developing countries expand vaccine manufacturing capacity and access existing capacity, US President Biden can earn much world appreciation overnight. US law and precedence enables such a unilateral initiative.

The Bayh-Dole Act allows the US government to require the owner or exclusive licensee of a patent, created with federal funding, to grant a third party a licence to an invention. Moderna received about US$2.5 billion from Operation Warp Speed, which dispensed over US$10 billion.

Moderna was founded in 2010 by university researchers with support from a venture capitalist. It has focused on mRNA technology, building on earlier work by University of Pennsylvania scientists with National Institutes for Health (NIH) funding.

The vaccine developer also used technology for previous coronavirus vaccines developed by the NIH. The NIH also provided extensive logistical support, overseeing clinical trials for tens of thousands. Moderna has already announced it will not enforce its patents during the pandemic.

Thus, POTUS has the needed leverage. The Bayh-Dole Act applies to Moderna’s vaccine, enabling the Biden administration to act independently and decisively against vaccine apartheid.

Sharing knowledge crucial
Developing countries not only need to have the right to produce vaccines, but also the requisite technical knowledge and information. Hence, the Biden administration should also support C-TAP, as recommended by Dr Anthony Fauci.

When the Medicines Patent Pool (MPP) was in similar trouble, the Obama administration came forward to put US-owned patents into the pool while encouraging drug companies to help improve developing countries’ access to medicines.

President Biden knows that early US support was critical for the MPP’s eventual success. It dramatically increased production and lowered prices of medicines for HIV, tuberculosis, hepatitis C and other infectious diseases in developing countries.