As a further means of curbing the spread of the Covid-19 pandemic within Botswana, the Minister of Health and Wellness, in terms of his powers under Section 75 read with Section 80 of the Public Health Act (CAP 63:01), issued Statutory Instrument (SI) No 3. of 2022 titled ‘Public Health (Prevention of Introduction or Spread of Covid-19) Order 2022, which came into effect on the 14th of February 2022. In essence, this legal instrument seeks to center proof of vaccination as a pinnacle requirement for entry into Botswana. It is evident that this instrument captures the predicament that Governments all over the world are currently weighing in the name of effectively managing the spread of the pandemic. The question grappled with is as follows: as a country, how do we stem the flow of the virus at point of entry? In addressing this question through various regulations and laws, this must be balanced in line with the individual’s right to movement and autonomy in terms of their ability to make decisions concerning their health on one hand while on the other hand, working to preserve life.
Bearing this in mind, this brief will succinctly unpack the instrument, exploring it from the perspective of human rights, specifically from the stand point of Botswana’s Constitution. In offering an understanding of how well the instrument holds in terms balancing all these considerations, this brief will then provide recommendations on possible ways forward.
PUBLIC HEALTH (PREVENTION OF INTRODUCTION OR SPREAD OF COVID-19) ORDER 2022 (SI NO 3. OF 2022)
According to Section 4 of the instrument, it provides as follows:
- A person entering into Botswana shall present proof that he or she is fully vaccinated;
- If person is unable to present proof of full vaccination, they shall present a negative PCR test result or any other test result as the Director may determine, not older than 72 hours from the time of testing, at the port of entry; and
- Be vaccinated at the port of entry; or
- Where he or she is unable to present a negative Covid-19 PCR test as required, the person will be immediately required to undertake Covid-19 PCR testing at their own cost as well as isolate within the district of port of entry if the results from the Covid-19 PCR test are positive.
- Persons under the age of 12 years old are exempted from the provisions above;
- The Director reserves the discretion, were he deems it necessary, to decide that a person entering Botswana may be required to undertake immediate Covid-19 PCR testing.
According to Section 5 of the instrument, a person who does not meet the requirements of Section 4 shall not be allowed entry into Botswana.
Under Section 3 (2) any individual that refuses to comply with Section 80 (c) and (d) of the Public Health Act are liable to a fine for P5000.00 or 1 year imprisonment or both.
In effect and as interpreted, Section 4 allows an individual to enter into Botswana without a Covid-19 PCR test provided that they provide proof that they are fully vaccinated. The Section also states that where one does not have proof of their full vaccination, they must present a negative Covid-19 PCR test not older than 72 hours and they must be vaccinated. If they do not possess proof of full vaccination and do not have a negative Covid-19 PCR test, they must undergo a Covid-19 PCR test at the port of entry, at their own cost, in addition to being vaccinated. If the Covid-19 PCR test is positive, they must isolate in the district of the port of entry at their own cost.
In interpreting Section 4, a few questions come to mind.
- Who is considered ‘fully vaccinated?’; and
- In the event that you are fully vaccinated and have left your proof, what is required of you?
In attempting to answer the first question, at Section 2, the statutory instrument provides that ‘”fully vaccinated” means a person who has received their primary series of Covid-19 vaccinations, including a booster dose as the Director may determine from time to time.’
In further clarification, the Ministry of Health and Wellness, issued a press release dated the 12th of February 2022. As to the first question, at paragraph (a) of the press release, it was clarified that ‘fully vaccinated’ means ‘ having taken two doses of a two dose vaccine regimen or single dose of the Johnson and Johnson vaccine. If one has taken any of the two and is overdue for booster shots, they are no longer regarded as fully vaccinated, until they have taken the booster shot.’
In clarifying the second question, under paragraph (c) of the press release, it provides that ‘…If one has no proof of being fully vaccinated and has no 72 hour negative PCR test result, they will be required to undergo PCR testing at port of entry, at their own cost and where necessary quarantine at their own cost, while waiting for results. If the results are negative they will be allowed into the country. If results are positive, they will be allowed to isolate within the district of port of entry, at own cost.’
A further question stemming from this would be as follows: at the port of entry, how will it be known that an individual is fully vaccinated without proof so as to ensure that they do not have to vaccine again, unduly? This is not clear from the provisions of Section 4.
THE RIGHT TO MOVEMENT: SECTION 14 OF THE CONSTITUTION
According to Section 14 of the Constitution, every individual is given the right to movement.
Verbatim, the Section reads as follows:
‘(1) No person shall be deprived of his or her freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana, the right to enter Botswana and immunity from expulsion from Botswana.
(2) Any restriction on a person’s freedom of movement that is involved in his or her lawful detention shall not be held to be inconsistent with or in contravention of this section.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-
(a) for the imposition of restrictions that are reasonably required in the interests of defence, public safety, public order, public morality or public health or the imposition of restrictions on the acquisition or use by any person of land or other property in Botswana and except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society;
(b) for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Botswana;
(c) for the imposition of restrictions on the entry into or residence within defined areas of Botswana of persons who are not Bushmen to the extent that such restrictions are reasonably required for the protection or well-being of Bushmen;
(d) for the imposition of restrictions upon the movement or residence within Botswana of public officers; or
As evident from the provisions of Section 14, the Government is entitled to place restrictions on the right to enter Botswana. However, this limitation on the right to enter Botswana must comply with the ‘constitutionality test’ which is as known as the ‘three part test.’
In terms of the constitutionality test, a limitation on the right to enter may be validly placed provided that:
- It is written or done under the authority of the law;
- It is legitimate; and
- It is reasonable in a democratic society.
In terms of the first criteria, this requires that the limitation must be clearly written and unambiguous such that individuals should be able to clearly foresee the consequences of their actions before hand. In terms of the second criteria, there must be an authentic reason for the limitation. This could be for the purposes of public health or safety among several other grounds, as the case may be. In relation to the third criteria, the limitation must be reasonable in that it must be proportional to the interests being protected and it must be the least intrusive, for public good.
In applying the above law to the provisions of the instrument, in relation to the first criteria, it is submitted that noting the questions raised above, more can be done to clarify the provisions of the instrument which sit as vague and ambiguous, requiring a press release in further explanation of it. In terms of the second criteria, it is clear from Section 14 (2) of the Constitution that the instrument serves a legitimate interest, specifically, for the purposes of public health and preserving life. In relation to the third and last criteria, it is submitted that making vaccinations compulsory for entry is a major breach of an individual’s right to autonomy over their decisions in relation to their health. It is also note worthy to mention that some individuals may also face complications from the vaccine due to pre-existing medical conditions, resulting in blood clotting in some instances. It is submitted that this is not proportional to the interests being protected due to the fact that it is the most intrusive method of curbing the spread of the pandemic. Moreover, it would not be reasonable to allow an individual to cross into Botswana purely because they are fully vaccinated. As we have noted in relation to the pandemic, an individual can be fully vaccinated and yet, still be able to contract the Covid-19 virus and spread it. As such, it is submitted that the strongest means of preventing the introduction of the virus in Botswana is by ensuring Covid-19 PCR testing as was the status quo, whether an individual is fully vaccinated or not. This is because it provides true clarity as to whether an individual is bring in the Covid-19 virus into the country or not.
In light of the above, it is recommended that the instrument be revoked. This is due to the fact that as raised above, the Covid-19 PCR test is the strongest means to detect whether an individual has the virus or not, which is the best way to prevent the introduction of the virus into Botswana. Conversely, though one may be fully vaccinated, this does not mean that the individual is not a carrier of Covid-19. In this way, a fully vaccinated individual may bring the virus into the country unknowingly due to the fact they would not have tested for Covid-19.
Returning to the status quo would be the least intrusive means of preventing the introduction of the Covid-19 virus and would be the most reasonable restriction to the right to movement, allowing individuals to retain their autonomy to make their decision in relation to the vaccine, bearing in mind possible underlying health conditions.
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