On 16 February 2022, the National Assembly Portfolio Committee on Cooperative Governance and Traditional Affairs re-engaged on whether to proceed with amendments to the Disaster Management Act. A key feature of the amendment bill is a proposal for greater involvement of national and provincial legislatures and local councils in the extension and review of disaster management provisions.

As an organisation focused on safety, policing and police accountability, the African Policing Civilian Oversight Forum has been concerned about the impact of South Africa’s approach to Covid-19 management on these sectors. In the absence of clear policy and planning for a public health approach to policing the pandemic, the results have been a highly securitised response.

We have seen the invidious burden placed on the police, manifesting in the inappropriate use of force — tragically profiled in the death of Collins Khoza; the lack of access to detention facilities undermining due process rights; lack of access to police stations and the impact on service delivery; and the alarming rise in gender-based violence. The list goes on, but invariably the marginalised and indigent bear the brunt, unable to find alternatives to life-sustaining activities, they are forced to perform in the public space.

The pandemic and our response have provided learnings that compel us to review our legal provisions for the management of extraordinary circumstances — be this disaster management, states of emergency or in changes to the notifiable disease regimes, which is most likely where our Covid-19 response is headed. There are five areas that will need attention across any possible legal regime.

First, the situation must warrant this extraordinary measure. All too often, the definitions contain catch-all phrases such as “other special circumstances”. This provides wide and arguably arbitrary discretion to the authority in question. Rather, this trigger needs to contain all three elements of death, injury or disease; serious damage to property, infrastructure or the environment; and serious disruption of the life of a community. This would ensure the legal ability to limit and derogate from practice is only available in the most serious circumstances.

One could argue that this might possibly limit the ability for a disaster response in the face of drought or flood. We would argue that just as Covid-19 has shown us we can’t simply commandeer and clumsily apply generic provisions, we will be wise to develop specific responses for severe climate disruptions, particularly as these are predicted to become more frequent.

A second learning has been our reliance on essential services. However, these are poorly defined — if at all — in our laws. The idea of essential services both in the public and private sector proved vital in our recent experiences of promoting safe, effective and efficient management of disasters, while at the same time maintaining services and programmes that are critical to the public wellbeing. All emergency law should define what essential services constitute, and issue clear criteria and process for determining this.

Third, disaster laws should learn from our experience of the disproportionate impact that Covid-19 responses had on a vast range of rights, interests and pursuits of individuals and communities. We need to be able to prepare and deploy targeted and differentiated responses, which may also encompass competing rights and interests. Emergency law should include provisions that require authorities to conduct a needs assessment with a view to developing a broad agenda for action immediately, or as soon as practically possible, following the declaration of a state of disaster. This may be self-evident and might be done as a matter of course.

It is important that these assessments be guided by principles of openness, transparency, inclusivity and non-discrimination, while recognising different community dynamics. This will allow duty bearers to identify, in the context of limited abilities and capacities, key areas, emerging concerns and trends and determine appropriate measures and levels of attention required to provide effective, inclusive and holistic response mechanisms.

In addition, the design and delivery of the response plan should be evidence-based and human-rights compliant and sensitive to the socioeconomic context. This certainly didn’t guide much of our response to Covid-19 disaster management.

We appreciate that under our constitutional framework and under international human rights law, some human rights may be subjected to limitations during a state of disaster. However, laws that regulate the declaration and management of a state of disaster must embody principles that provide guidance on the nature of rights and freedoms that are available for limitations when declaring a state of disaster, and those for which no limitation of derogation is permitted.

Our Bill of Rights contains a list of non-derogable rights that safeguard constitutional rights such as, inter alia, the right to be treated with dignity. Regulatory instruments must explicitly articulate the basic human rights and freedoms that cannot be limited during a state of disaster, provide guidance on the nature of rights and freedoms that are available for limitations, and enjoin the state to provide regular and clear reporting and explanation on the human-rights impact of measures adopted to manage the disaster.

Finally, we believe laws that regulate a state of disaster should simplify access to critical information, and place specific positive obligations on the state to provide timely, accurate and accessible information relating to the disaster.

This debate is not unique to South Africa. At a continental level, the African Commission on Human and Peoples’ Rights is in the process of developing normative guidelines aimed at supporting the protection and promotion of rights and freedoms embodied in the African Charter during states of emergency or disaster. And the World Health Organisation is being urged to consider a pandemic charter, to guide better protection of human rights during states of emergency and disaster.

If we are serious about building back better, then these are issues we cannot ignore. On this opportunity, though, the ball is in the court of the Portfolio Committee on Local and Cooperative Governance. DM

Sean Tait is director of the African Policing Civilian Oversight Forum (APCOF).