Courts cannot fix a broken state, solve the vaccine pro…

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Lawfare is truly alive and well in this country. And as is often the case with lawfare, the question is whether courts are the appropriate forum to resolve these disputes.

The Covid-19 pandemic is not unique to South Africa. What is different, however, is the rush to courts to litigate against a range of government interventions. AfriForum and Solidarity, which are habitually enthusiastic litigators, have announced that they intend to launch an application against, inter alia, the government’s decision to control all procurement of vaccines, thereby seeking to shut out the medical aids schemes from acquiring vaccines for members. South African Breweries is also off to court to gain an order setting aside the alcohol ban.

Lawfare is truly alive and well in this country. And as is often the case with lawfare, the question is whether courts are the appropriate forum to resolve these disputes.

In the first place, the executive are entitled to a significant measure of judicial respect regarding choices made to deal with a pandemic that no other country has successfully negotiated. Judges are not omnicompetent and thus are hardly in a sound place to make calls on what is in reality a set of exquisitely difficult policy choices.

Secondly, given that the wheels of the court move so slowly, and that both these cases are likely to be subject to one, if not two appeals to the highest courts, a judicial resolution may be completed only long after the Covid-19 is, hopefully, brought under a significant measure of control. Mootness is a probable outcome.

That there is litigation of this nature is reflective of a deeper problem. The government’s response to Covid-19 has illustrated yet again the disastrous health of the South African State. We have an incapable state in the midst of the worst health crisis for more than a century. And this when we have a Constitution that, by way of s27, imposes a clear obligation on government to progressively realise access to health for all who live in this country.

Agreed that after its ill-fated webinar on a vaccine policy (or, more accurately, the lack thereof) on Sunday 3 January, the government roused itself into some action. But save for the 1.5 million doses of vaccine that will all hopefully arrive by the middle of February, and the Covax facility to cover about 10% of the population, there is no clarity as to when more vaccines will be procured to vaccinate 40 million, as set out in the plan. In his latest speech, President Ramaphosa spoke vaguely of 20 million more doses of vaccine, a statement that hardly complies with the standard required of an accountable, constitutionally compliant government.

If that was not enough to cause despondency, Stephen Sacker of the BBC Hardtalk programme eviscerated Prof Barry Schoub, the head of the government’s vaccine advisory committee, revealing the changing narrative to which South Africans have been subjected, and frankly the gross incompetence since September last year when government began negotiations for a vaccine.

This interview is reinforced by another fact: it appears that until the reaction of civil society to the Health webinar there was no clarity as to how the funding was to be sourced for the purchase of the vaccine.

How is this possible in a country with a supposedly functioning government!?

Was the issue of funding not discussed fully in Cabinet at which both the Ministers of Finance and Health were present?

In short, this failure alone raises questions about the coherence of government.

Leaving aside the procurement of vaccines, the task of ensuring that 40-million can be vaccinated is in itself a monumental task. But again, other than vague generalities, the country is none the wiser about whether there is a coherent distribution plan and the contents thereof. Listening to the President, one was overwhelmed by the repetition of the same speech delivered previously followed by vague promises. This pandemic affects the lives of all South Africans and hence the country deserves candour, accountability and delivery.

Why will the President not subject himself to a comprehensive press conference so that the press can ask the range of questions to which the public want detailed answers? How is this conduct compatible with open and transparent government? The sharp point is that other countries, including developing countries, are far ahead of South Africa in their vaccination programmes. There can be little doubt that for months far too little was done to comply with government’s s27 obligations. This has all taken place in a country with world-class virologists (to which it should be added the very best have been excluded from being part of the government’s advisors due, it seems, to their fierce independence) and a long record of rolling out antiretrovirals to those living with HIV. With a modicum of a capable state, this dire situation should not have occurred.

That brings us back to lawfare. Courts cannot fix a broken state. Litigation cannot produce the level of capability needed for the State to deal with the consequences of Covid-19 which includes a rational, achievable economic recovery plan which seems to have stalled at the announcement stage. The vindication of the promises of the Constitution requires a political solution. Lawfare is not the answer. DM

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