Speech on Parliament's role in terms of section 231(2) of the Constitution, with particular reference to the World Health Organisation's proposed Pandemic Agreement and amendments to the International Health Regulations of 2005
Speech by ACDP MP, Wayne Thring

Issued by the ACDP Parliamentary Media Office

South Africa must be able to make its own domestic decisions on national public health

Mar 1, 2024

Chairperson,

The ACDP believes that the proposed Pandemic Treaty read with the amendments to the International Health Regulations will set humanity into a new era that is strangely organised around pandemics: pre-pandemic, pandemic and inter-pandemic times. A new governance structure, under WHO auspices, will oversee the IHR amendments and related initiatives. It will rely on new funding requirements, including the WHO’s ability to demand additional funding and materials from countries and to run a supply network to support its work in health emergencies.

That is under Article 12, which states that, “in the event of a pandemic, real-time access by WHO to a minimum of 20% (10% as a donation and 10% at affordable prices to WHO) of the production of safe, efficacious and effective pandemic-related products for distribution based on public health risks and needs, with the understanding that each party that has manufacturing facilities that produce pandemic-related products in its jurisdiction shall take all necessary steps to facilitate the export of such pandemic-related products, in accordance with timetables to be agreed between WHO and manufacturers.”

In addition, articles 15 and 16 will allow the WHO to require a state to provide resources, “health products, technologies and knowhow” and to allow the WHO to deploy “personnel” into the country—that is, it will have control over entry across national borders for whoever it chooses. The WHO also repeats the requirement for the country to require the implementation of “medical countermeasures” (testing, vaccines, quarantine) on their population where the WHO demands it.

Furthermore, additional measures are proposed to limit freedom of speech such as contained in Annexure 1, Article 5(e) , relating to “Counter misinformation and disinformation”. Although freedom of speech is currently exclusively for national authorities to decide, and its restriction is generally seen as being negative and abusive, global institutions including the WHO have been advocating for censoring unofficial views in order to protect the people from what they call “information integrity”. This is unacceptable and in breach of our constitutional rights.

This issue goes to the heart of what Parliament is all about. It is about who is in charge. Are we, as a democratic Parliament, in charge of the laws of our country?

Why are there no provisions for subjecting material amendments to international agreements to parliamentary approval in terms of section 231(2)? Once we have given away these powers to the WHO, it is very difficult to get them back. No wonder there is a push-back from developing countries.

Where is the process of finalising these amendments to the regulations?

WHO Member States continued negotiating  on proposals to amend the International Health Regulations 2005), during the 7th meeting of the Working Group on Amendments to the IHR (WGIHR) was held on 5-9 February 2024.

To understand the far-reaching impact of these amendments one need only consider the statement by Dr Michael Ryan, Executive Director of the WHO Health Emergencies Programme, in which he said, “This Working Group will define the next 10 years of global surveillance and of collective security when it comes to health emergencies and particularly high-impact epidemics (public health emergency of international concern (PHEIC).”

Additional issues that are also being considered by the Intergovernmental Negotiating Body (INB), which deal with equity, collaboration, capacity building and financing, will be addressed by member states on 8 March 2024, when the seventh meeting of the WGIHR will resume.

Proposed amendments to provisions related to governance, and foundational articles of the regulations, will be addressed when the WGIHR meets for the eighth time in April 2024 to finalise the amendments.

The package of far-reaching amendments will be considered by the 77th World Health Assembly in May 2024. If agreed to by consensus, they will be binding on all member states, including South Africa, without us as Parliamentarians playing any role in terms of section 231(2), or for that matter any oversight role in terms of section 55. 

Developing countries have also expressed concerns that these negotiations were running parallel with the WHO pandemic treaty. A spokesperson for the Third World network said that “Several developing countries have said that the WHO has too many platforms for negotiations, and is simply not manageable”.

Because there is no examination of the important decisions and advice that the WHO offered to the whole world, and the influence that major donors has on its decisions, it is all the more important to be very careful of giving up one sovereignty over public health issues.

What few people realise is that the scope of the proposed Pandemic Treaty and the IHR amendments is broader than pandemics, greatly expanding the scope under which a transfer of decision-making powers can be demanded by the WHO. Other environmental threats to health, such as changes in climate, can be declared emergencies at the Director General’s discretion, if broad definitions of a One Health policy are adopted as recommended.

Concerns have also been expressed in other parliaments. For example, this past December in a debate on the International Health Regulations 2005 in the UK parliament, the honourable Philip Davies warned: “We are talking about a top-down approach to global public health hardwired into international law. At the top of that top-down approach we have our single source of truth on all things pandemic: the World Health Organisation’s Director General, who it appears will have the sole authority to decide when and where these regulations will be deployed.”

The New Zealand government has appeared to have lodged a reservation to allow the incoming government more time to consider whether the amendments are consistent with the national interest test required by New Zealand law.

The ACDP believes that South Africa should lodge a similar reservation given that elections are taking place in our country in the same month, May, when these far-reaching amendments are due to be considered by the World Health Assembly.

At the very least, the ACDP requests—no, demands, an undertaking from government that it will not agree to any IHR amendments that would compromise South Africa’s ability to take domestic decisions on national public health measures even in the event of public health emergency of international concern (PHEIC). In this regard, the ACDP has recorded its formal objections to the IHR amendments to the WHO.

Lastly, we recommend that section 231(2) be amended to allow us as Parliament to reconsider international agreements that have been substantially amended, as is proposed in the case of the International Health Regulations.

I thank you. 

*Check Against Delivery*

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