COVID-19 Vaccine for Undocumented People

23 February 2021

Open Letter issued by:
Global South Against Xenophobia (GSAX) - C19 People’s Coalition
Lawyers for Human Rights (LHR)
South African Human Rights Defenders Network (SAHRDN)
To: The President of the Republic of South Africa
The Minister of Health
The Minister of Home Affairs
Global South Against Xenophobia (GSAX) of the COVID-19 People’s Coalition, Lawyers for Human Rights (LHR) and the South African Human Rights Defenders Network (SAHRDN) call on government to transparently reveal its vaccine rollout strategy, as required by its international and domestic human rights obligations. The strategy should be inclusive and enable maximum public participation and democratic accountability to ensure full and equal protection of the human rights and safety of undocumented locals and non-locals, including marginalized and disadvantaged groups such as the LGBTQI community. This clarity is essential in countering potential disruptions to vaccine rollout, including xenophobia, and preventing unjust and unconstitutional exclusions from vaccine access.

We acknowledge the government’s efforts to procure COVID-19 vaccines to contain the spread of the deadly virus. We fully support government placing the vaccine centrally in the state’s science-based strategy for managing the pandemic effectively. We applaud government for making critical efforts to fight for vaccine accessibility for all the peoples of Africa and the rest of the Global South, not least through the request for a waiver on intellectual property rights from the WTO. 

In light of these progressive steps, we are, however, concerned about present lack of clarity and transparency regarding vaccination of undocumented people in South Africa, or if the process to access the vaccine will be restricted to a South African bar coded ID. The unclear and sometimes contradictory communication in this regard places at risk the public’s confidence and trust in the vaccine and its rollout, and seriously risks exclusion of significant portions of local and non-local populations from vaccine access. Many South African citizens and non-citizens alike simply lack access to documentation that would be required for vaccine access.

Poor and working class black women, in particular in the rural areas, are likely to be most affected here as they count amongst the most neglected of population groups were services are concerned. Moreover, vulnerable and marginalized groups such as certain LGBTQI persons often are prevented from accessing documentation because of restrictive policies and realities that inhibit their access to identity documents reflecting their gender. Amidst already prevalent vaccine hesitation, gross misinformation in circulation about the virus and the vaccine, and increasing poverty government’s clarity and transparency are vital.

Evidence shows that there were 15.3 million people without identification documents in South Africa in 2018. This figure includes both citizens and residents of the country, that is, undocumented locals and non-locals “who do not have ‘proof of legal identity’” (fact-checking done by Africa Check in November 2020 disproving Herman Mashaba’s claims that non-locals comprise 15.3m).

The lack of access to documents already effectively means exclusion of nearly a quarter of the population from state services and benefits they are constitutionally entitled to de facto of residing in the Republic of South Africa. Affected locals, non-locals, people with disabilities and some groups amongst LGBTQI people are also particularly vulnerable to discriminatorily failing to access a full range of social services to which they are entitled.

On SABC News, 30 January 2021, the Minister of Health, Zweli Mkhize, stated that government had no vaccine plan for undocumented immigrants. Asked how fellow Africans without documents will be vaccinated, the Minister answered: “Those who are undocumented, we are unable to deal with that because at the moment we would like to be able to deal with people who are based on South African registration of some sort. So, at least at this point, we have no plan to deal with those who are not documented”.

We also note the statement on 1 February 2021 by President Cyril Ramaphosa who while clear on the principle about inclusion of non-locals, however, remained vague in pronouncing how this will be undertaken and guaranteed. The President remained silent too on arrangements for undocumented locals. This is disturbing and raises many fears. 

His Excellency the President and the Honourable Minister appear unaware of the anxieties faced by the millions who are undocumented, resulting from Apartheid, ongoing challenges with Home Affairs and poverty, which effectively renders them stateless. They exist precariously with “unofficial” status within state and society. The anxieties of our fellow people, their hardships and marginalization are unacceptable at the best of times. During dire crises, such as the current COVID-19 pandemic, their vulnerability worsens. Government must thus prioritize preventing their falling into deeper socio-economic distress and ill health.
We therefore call on the COVID-19 Task Force to immediately clarify vaccination arrangements for undocumented people. This will signal clearly government’s commitment of the vaccine as a human right for all, and its full investment in curbing the pandemic. We all need reassurance of being included in the plan to protect us from the deadly virus wreaking havoc on us all, including at the psychosocial level.

In a submission made to the UN Committee on Economic, Social and Cultural Rights on 15 February 2021, the International Commission of Jurists (IJC) asserted:

"Without advanced access to States’ vaccine acquisition and rollout plans, individuals and groups seeking to enforce Covenant rights are unable to do so. There is a real risk, for example, that States’ rollout plans will discriminate against disadvantaged and marginalized groups either explicitly or in their impact. For example, it was initially reported that in South Africa vaccines would only be made available to South African citizens, and not to “undocumented” foreign nationals. Concern remains that documentary requirements to access vaccines may discourage “undocumented migrants” from seeking vaccination." [full submission available here].

An immediate, transparent, and fully comprehensive vaccine plan, accompanied by a documents drive is urgently required. A dual strategy of providing documents and the vaccine is necessary, we believe, as non-locals might hesitate to present for vaccines even if available to them for fear of deportation if identified as not having papers. A documents drive by government is also likely to motivate locals concerned accessing the vaccine as well.

The WHO is clear on the issue of vaccine nationalism, with rich countries stockpiling vaccines for their own use only: “not only does this me-first approach leave the world’s poorest and most vulnerable people at risk, it’s also self-defeating. Ultimately, these actions will only prolong the pandemic, the restrictions needed to contain it, and human and economic suffering” [speech available here]. The same can be argued for undocumented people and certain groups in the LGBTQI community.

Access to health is a human right enshrined in our country’s supreme law and in other regional and international human rights standards binding on South Africa. Denying undocumented people the vaccine and failing to deliver on their rights are highly problematic and unconstitutional. Government must thus provide constructive measures to ensure all have the necessary documents to include everyone in vaccine rollout arrangements. 

Providing both documents and vaccines will more fully deliver on individuals’ health rights and contribute to attainment of population/herd immunity and national, regional and global health. Documents will deliver on basic rights to safety and on socio-economic rights relating to basic needs and services; here it is important to note the likelihood of such rights denial to be concentrated amongst poor and working class women, particularly in single-headed households and among rural communities. Thus government must at the very least make the attempt to maximize access of all these rights for all those undocumented. We include contingency measures below if all documents are not fully issued within the vaccine rollout period.

We therefore call upon the Minister of Health to come out clean on this issue, and to spell out the full rollout strategy for the COVID-19 vaccine to reach all people living in the Republic.

We make these key recommendations below to assist the government in this regard:

Commitment by government to prioritize arrangements to provide the vaccine to all undocumented people, including the steps to be taken prior to and during vaccine rollout. Thus, Home Affairs should use vaccine rollout as an opportunity to remedy its backlog to process undocumented persons. Considering vaccine scheduling for the elderly and those with comorbidities in Phase Two, planned for the second quarter of 2021, Home Affairs must immediately start announcing its arrangements for undocumented individuals who fall into this phase, followed by those similarly falling into Phase Three. To expedite this, it must set aside specific days for processing only those undocumented, and provide mobile services to reach those in townships, informal settlements and peri-urban and rural areas to mitigate transport difficulties they might face due to poverty and lockdown measures; women in particular are likely to be affected here. Home Affairs officials must also be present at vaccine sites to process undocumented persons so they can present and receive the vaccine regardless of having papers or not. Another critical measure so no person is excluded is they get the vaccine via a special waiver dispensation issued by order of the President of South Africa, and granted without any difficulty at vaccine sites. Commitment must be made and carried through as soon as possible to complete the documentation process for them.

A special task team to be appointed and empowered with all necessary resources to implement the rights of undocumented persons, including obtaining documents, and/or the vaccine, and all other basic needs and services for the remainder of the pandemic. This special task team must have direct support of state oversight structures--the SAHRC, CGE, PP and AG. In addition, government must engage UNHCR to assist non-locals to access papers and/or the vaccine, importantly taking into account that non-locals are currently experiencing difficulties under lockdown to renew their documents. The same must apply internally so support is gained from the Department of Social Development, other relevant ministries, departments and state offices for locals and non-locals to access papers and/or the vaccine.

Government must announce its arrangements in 14 languages (11 official languages and the three main languages spoken by non-locals--Swahili, French and Portuguese) via social media, ward counsellors, community leaders, civil society actors, workplaces, and mainstream and local media, including newspapers, radio and television. 

Government must immediately promulgate regulations to the effect guaranteeing to not criminalize or take actions against anyone without formal papers; this must especially be directed at non-locals who constantly experience and fear repression from police and other law enforcement entities, which has increased with the pandemic. This anti-repression measure must be clearly and firmly communicated to all law enforcement and security entities as abiding for the vaccine rollout period and the full duration of the pandemic. 

Undocumented persons, along with other groups identified as extremely vulnerable must be brought under the special protection of the President of the Republic of South Africa and the Office of the President, this in recognition of their extreme vulnerability during the pandemic. Though to be further discussed in a forthcoming statement by the COVID-19 People’s Coalition, we similarly here state that all non-locals, persons with disabilities, children who are orphans and those residing in child-headed households, the elderly, girls and women in rural areas, those with severe mental illnesses, healthcare workers, medical first responders and certain categories of other frontline and essential workers at particular risk of infection should also be accorded this special protection status. Clarity should be provided as to what special protection status under the State President and his Office means, including that it is a vital step in the state’s duty to care for extremely vulnerable groups by delivering on their needs and rights so they survive the pandemic.

Government must engage civil society and other relevant entities further to discuss and implement these and any other constructive measures to support undocumented and other extremely vulnerable people accessing their documents, the vaccine and all other needs and rights.

We believe the above will make a critical difference in ensuring undocumented persons in South Africa accessing COVID-19 vaccines and all their rights and needs in future. Firstly, affected locals will find better traction in society. Second, this would be a critical step in proper integration of non-locals, will promote social cohesion by strengthening community relationships amongst locals and non-locals, and will boost South Africa’s reputation as a leading light in democracy and regional solidarity in Africa.

With regard to the concerns raised above about clarity and transparency for vaccine rollout for undocumented people, we urge his Excellency the State President, the Honourable Minister of Health and the Honourable Minister of Home Affairs to immediately make announcements regarding the requests and recommendations we have made in this letter. 

Issued by C19 People’s Coalition, 24 February 2021