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

Issued by the ACDP Parliamentary Media Office

Surely Parliament is not just a rubber stamp for international agreements?

Mar 1, 2024

Chairperson,

The ACDP fully appreciates that the negotiating and signing of all international agreements is the responsibility of the national executive as set out in section 231(1) of the Constitution.

However, section 231(2) states that an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the NCOP, unless it is an agreement referred to in subsection (3) of a technical, administrative or executive nature (which does not require either ratification of accession).

Agreements requiring parliamentary approval are agreements which require ratification or accession (usually multilateral agreements); have financial implications which require an additional budgetary allocation from Parliament; or have legislative or domestic implications (e.g. require new legislation or legislative amendments).

While Parliament’s approval process is clearly set out in section 231(2), the ACDP is concerned about the time Parliament takes to consider and approve international agreements.

I have also never seen Parliament amend an agreement tabled before it. Surely Parliament is not just a rubber stamp for such agreements?

Because of this delay between the signing and ratification by Parliament, I submit that Parliament has, over and above its powers in terms of section 231(2) also an oversight function in terms of section 55(2) over the Executive.

The question is when there is uncertainty as to whether Parliament will be required to approve amendments to an international agreement it can exercise its powers in terms of section 55(2), particularly when those amendments may threaten the national sovereignty of a member state.

It is against this background that we would like to consider the Pandemic Treaty and International Health Regulations 2005 Amendments – both instruments of international law.

The protracted Covid-19 lockdown severely constrained our personal freedoms, and resulted in the closure of tens of thousands of businesses. An estimated 2 million South Africans lost their jobs as a result, joining the ranks of those already struggling and living below the poverty line. Sadly, many have not been able to find sustainable employment since then. In addition, tens of thousands of people are still suffering from Covid-19 vaccine injuries, with little or no recourse to effective medical treatment or compensation. We also saw the gross abuses in the procurement of PPEs – tens of billions of rands. This past week the Special Tribunal found that a R113million PPE contract by the Health Department was invalid.

Countries across the world have been asking questions and even having full parliamentary inquiries into how their governments handled the Covid-19 pandemic – and what role multinational pharmaceutical companies played in influencing governments and the World Health Organisation.

We as parliamentarians now know how our government was bullied into signing Covid-19 contracts with global Western pharmaceutical manufacturers and suppliers and paid billions of rands for Covid-19 vaccines on highly unfavourable terms in which the manufacturers of the experimental drug acknowledged “that the long term effects and efficacy of the vaccine are not currently known and that there may be adverse effects of the vaccine that are currently not known.” Despite this acknowledgement, government agreed to “indemnify, defend and hold harmless” certain manufacturers from any claims resulting from the vaccine, and was obliged to set up a R250 million Vaccine Injury No-Fault Compensation Scheme.

So what are we dealing with in terms of international law. The first concerns far-reaching amendments to the existing International Health Regulations 2005, and the second is the WHO’s new Pandemic Treaty, which would support the bureaucracy and financing of the expanded IHR.

Both instruments are, in our view, very concerning as they are designed to transfer binding decision-making powers to the WHO. While the aim of improving how the world prevents and better prepares for disease outbreaks is laudable, what is being proposed will in our view have a huge and detrimental impact on all parts of society and on our country’s sovereignty. It is nothing less than a power grab by the WHO.

The ACDP believes that the proper role of the WHO is to provide information to governments across the globe. Those governments can then decide for themselves what recommendations they like and what they don’t like. It is not to dictate to countries how they should respond to health emergencies, but to partner with and assist such countries.

We are concerned that the WHO is beholden to certain countries, multinationals and powerful individual donors, such as the Bill and Melinda Gates Foundation. He who pays the piper calls the tune.

The Pandemic Treaty or Agreement must be tabled for Parliament’s approval in terms of section 232(2). Indeed, International Relations and Cooperation Minister Pandor of DIRCO has previously said in Parliament said that the Pandemic Treaty will be tabled in Parliament for approval, as is required.

Of greater concern are the amendments to the International Health Regulations 2005 being negotiated as we speak. The ACDP is grateful that African countries, led by Botswana, objected to the push by the US to reform these health rules in 2022. 

Despite these objections, significant amendments were pushed through at the World Health Assembly on 22 May 2022. Those amendments come into force under international law for all member states within 24 months—that is, by 31 May 2024  without any oversight or approval from us as parliamentarians. This is concerning.

In response to the US push to reform health rules, 300 further amendments were tabled by unhappy member states. These have been the subject of negotiations and have been debated in various parliaments – but not here in South Africa.

South Africa passed the International Health Regulations Act 28 of 1974 as amended by sections 46 and 47 of the Transfer of Powers and Duties of the State President Act,1986, (Act No 97 of 1986).  In terms of section 231(5), South Africa “is bound by international agreement which were binding on the Republic when the Constitution took effect” (in 1996).

The International Health Regulations (2005), were adopted by the 58th World Health Assembly on 23 May 2005 and entered into force on 15 June 2007.

What is interesting is that the International Health Regulations Bill, 2013, was published for comment in the South African Government Gazette (Notice 36931) on 14 October 2013 in terms of the constitutionally required public consultation process. This Bill sought to repeal the International Health Regulations Act 28 of 1974; to incorporate the International Health Regulations 2005 into South African domestic law in terms of section 231(4) of the Constitution in order to apply the International Health Regulations in South Africa and to provide for the matters connected therewith. 

As far as we are aware, this Bill was not passed by the South African Parliament, which brings the domestication of the International Health Regulations 2005 into South African law in terms of the Constitution, and any future purported amendments to the IHR 2005 into question. Alternatively, it means that the International Health Regulations still fall under the ambit of the 1974 Act.

Why should we be concerned?

Despite statements to the contrary, if one reads the amendments together, they will undermine South Africa’s sovereign right to determine its own public health policies.  Vague definitions of “health” could allow the WHO to declare pandemics, even permanent pandemics, and allow it to impose binding restrictions such as lockdowns, surveillance and even mandatory treatments on countries. These measures are far-reaching and demand the attention of us not only as law makers, but also in exercising oversight over the executive during negotiations. We need to be mindful that the WHO (report of the Review Committee regarding amendments to the International Health Regulations, 2005) stated on 6 February 2023 that “the sovereignty of states parties remain foundational to the Regulations. As with the revisions nearly 20 years ago that led to the International Health Regulations (2005), proposed amendments to them will need careful balancing between a state party’s sovereign right to take actions necessary to protect its population against a public health risk, while recognising their mutual vulnerabilities and responsibilities, and the imperative of international cooperation and solidarity, which are key enablers of effective regulations.”

This is in itself a warning that the sovereign rights of states parties may be compromised.

A South African petition raising awareness gained the support of more than 12 000 people, but has largely been ignored.

Why should we be concerned? The proposed amendments significantly change what was previously the “recommendations” to binding requirements through three mechanisms.

The first is the removal the term “non-binding” from article 1 resulting in certain recommendations now becoming binding on member states.

We as parliamentarians should all be deeply concerned by the removal of the word “non-binding”. There is much in the existing IHR that would suspend fundamental human and bioethical rights. As article 18 makes clear, these include multiple actions directly restricting fundamental human and bioethical rights, such as requirements for vaccinations and medical examinations, and implementing quarantine or other health measures for suspect persons—in other words, mandates and lockdowns.

Given that South Africa had one of the longest and harshest government imposed lockdowns, we need to be extra cautious in giving these powers to an unelected and unaccountable organisation that is backed by powerful Governments, donors and institutions, and financial mechanisms, including the IMF (International Monetary Fund), the World Bank.

The second is the insertion under new article 13A of the phrase that “Member States” will “undertake to follow WHO’s recommendations” and recognise WHO not as an organisation under the control of countries, but as the “co-ordinating authority of international public health response during public health Emergency of International Concern…”

(New article 13A states: “States Parties recognise WHO as the guidance and coordinating authority of international public health response during public health Emergency of International Concern and undertake to follow WHO’s recommendations in their international public health response.”)

It is thus likely to make opposition from lower-income countries extremely difficult to sustain, but we understand that there is a significant push-back from developing countries in the run-up to the vote at the World Health Assembly in May this year. 

Thirdly, under article 42, “State Parties” undertake to enact what previously were merely recommendations, without delay, including alarmingly requirements of WHO regarding non-state entities i.e. the private sector under their jurisdiction.

Article 42 states: “Health measures taken pursuant to these Regulations, including the recommendations made under Article 15 and 16, shall be initiated and completed without delay by all State Parties, and applied in a transparent, equitable and non-discriminatory manner. State Parties shall also take measures to ensure Non-State Actors operating in their respective territories comply with such measures.”

“Non-State Actors” means private businesses, charities, and individuals. In other words, everyone and everything comes under the control of the WHO, once the Director General declares a public health emergency of international concern. Where these were once merely recommendations, they have now become binding on member-states. What makes it worse is that we as MPs have no say over these fundamental changes to the IHR which may threaten our countries sovereignty over public health issues.

Furthermore, articles 15 and 16 mentioned here allow the WHO to require a state to provide resources, “health products, technologies and know how” 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.

These proposed amendments taken together are very far-reaching and will, we believe, empower the WHO to issue requirements or obligations to South Africa to mandate highly restrictive measures, such as lockdowns, masks, quarantines, travel restrictions and medication of individuals, including vaccination, once a Public Health Emergency of International Concern (PHEIC) has been declared by the WHO.

We as parliamentarians are guardians of the country’s hard-won freedoms, so we need to be aware of what is being negotiated and what sovereign rights are being negotiated away.

The ACDP is deeply concerned that our sovereignty to decide on public health issues is being negotiated away. No wonder there is such a push back from African countries. 

The central question is whether after these amendments have been passed, could the WHO put South Africa under lockdown? Yes or no. If the answer is yes, then we have a problem.

*Check Against Delivery*

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