When it comes to Freedom of Expression, the WHO Pandemic Agreement says nothing

THE World Health Organization’s long-awaited Pandemic Agreement has finally been adopted. At over 30 pages, it is comprehensive in ambition - addressing everything from vaccine access to supply chain resilience. But when it comes to one of the most critical ingredients for effective public health in a democracy - freedom of expression - the Agreement has remarkably little to say.

In fact, it says almost nothing.

Take, for instance, this key provision: “Each Party shall, as appropriate, conduct research and inform policies on factors that hinder or strengthen adherence to public health and social measures in a pandemic and trust in science and public health institutions, authorities and agencies.”

This sounds constructive. But read it again. “As appropriate”? According to whom? And what policies, exactly? The Agreement doesn’t say. It offers no guidance on whether open public debate - complete with disagreement, critique, and messy facts - is essential to building trust in science and public institutions.

Nor does it warn against the dangers of censorship during public health crises. It simply leaves it to each country to decide for itself what “appropriate” means. In other words, it takes no position. And this is precisely the problem. In the name of trust, governments during the COVID-19 pandemic did not always build it - they sometimes undermined it. South Africa offers two powerful examples.

First, Dr Glenda Gray, one of the country’s most respected scientists and then-president of the Medical Research Council, publicly criticised aspects of the government’s lockdown measures. The reaction from the Department of Health was swift: the Director-General requested that her employer, the Medical Research Council, investigate her.

This wasn’t scientific debate. It was an attempt to silence a dissenting voice. It was only after public uproar that the matter was dropped. Second, consider the ivermectin litigation saga. In December 2020, South Africa’s medicines regulator, SAHPRA, triggered a controversy by incorrectly stating in a press release that ivermectin was “not indicated … for use in humans”, despite the fact that the drug had long been registered for certain human indications in South Africa.

Some might label SAHPRA’s statement as misinformation or even disinformation, but more plausibly, it was simply a careless - though consequential - error by a public authority. Yet the same press release went further, threatening with criminal enforcement against members of the public seeking to import ivermectin - an unnecessarily heavy-handed stance that swiftly provoked litigation.

These are not stories from some distant autocracy. They happened here, in South Africa. And they highlight an uncomfortable truth: even well-meaning public institutions can slip into authoritarian habits under the pressure of a public health crisis.

The antidote to authoritarian drift - and to official error - is freedom of expression. In Democratic Alliance v African National Congress, the Constitutional Court affirmed that freedom of expression is valuable not only for its intrinsic worth but also for its instrumental role in a democratic society. It informs citizens, fosters public debate, and enables the exposure of folly and misgovernance.

It is also vital in the pursuit of truth—both personal and collective. If society suppresses views it deems unacceptable, those views may never be tested, challenged, or proven wrong. Open debate enhances truth-finding and allows us to scrutinise political claims and reflect on social values.

This is why the South African Constitution enshrines freedom of expression - not as a luxury for peacetime, but as a safeguard for moments of crisis. Our Constitution was written with the memory of repression in mind. And it is precisely when fear and uncertainty tempt governments to silence dissent that its protections matter most.

One might have expected an international agreement on pandemic response to affirm these same values. Yet the WHO Pandemic Agreement retreats into vagueness. It speaks of “trust” and “solidarity,” and warns against “misinformation and disinformation,” but avoids the real issue: how should a democratic society respond when public health policies are contested?

How do we protect space for critical voices? Instead of offering a principled stand, the Agreement offers a shrug. Countries are told to act “as appropriate.” That could mean encouraging open dialogue—or it could mean criminalising dissent. The WHO doesn’t say. And that silence speaks volumes.

The next time a pandemic strikes - and there will be a next time - we cannot look to Geneva for guidance on how to preserve open debate and protect democratic norms. We must rely on our own institutions and our own constitutional commitments. Fortunately, in South Africa, we have a Constitution that affirms that we are an open and democratic society - not an authoritarian one. But we must remain vigilant. Because, as recent history shows, it is precisely when the pressure is highest that those commitments are most likely to be tested.

Professor Donrich Thaldar, is a professor of law at the University of KwaZulu-Natal. The views expressed are his own and does not necessarily reflect those of the Sunday Tribune or IOL.

SUNDAY TRIBUNE