On 15 March, the government declared a “State of Disaster” in terms of Section 27 of the Disaster Management Act. The regulations issued under the state of disaster prescribe broad powers to the minister of co-operative governance and traditional affairs and to the Executive to control the spread of the coronavirus and ease the burden on the national healthcare system. 

According to Labuschaigne and Staunton, the measures enacted “represent the most comprehensive limitation on the freedom of movement and assembly of all South Africans since apartheid”. Yet, since the imposition of the state-sanctioned lockdown on 27  March, South Africa has borne witness to reports of community protests, hunger, police and military brutality, prohibitions on freedom of expression and the spread of disinformation, forced medical treatment, geo-tagging of mobile phones, and gender-based violence. 

Such reports point to deeper questions around the politics of oppression, internment and human rights violations at a time when key democratic structures have been foreseeably suspended, including parliamentary oversight. To put this all differently, enormous power has been self-vested in the Executive to act in the public good to mitigate the effects of Covid-19 on South African society. How must this power be held in check and democracy protected while the freedoms enshrined in the Constitution are so fundamentally curtailed? 

In response to these concerns, the Human Sciences Research Council (HSRC) held a public seminar on 15 April under the theme “On democracy and authoritarianism: systems, ideologies, freedom and vulnerabilities in the era of Covid-19”. While there has been much discussion on the effects of Covid-19 on health, the economy and education, this seminar sought to generate public engagement and reflections from the social sciences and humanities on the political dynamics that underlie, structure and make possible these foregrounded concerns. More pointedly, as the divisional executive of the HSRC’s Developmental, Ethical and Capable State Research Programme, Professor Narnia Bohler-Muller, put it, we must examine where South Africa’s response to Covid-19 lies on the continuum between resilient democracy and authoritarianism, and work to protect our rights and freedoms accordingly. 

Toward authoritarianism?

Countries the world over have performed the ultimate speech act of a sovereign nation by declaring a State of Emergency, suspending aspects of the written law in order to protect the legal order and the sovereignty of the state to protect its citizens. For Professor Joleen Steyn-Kotze, senior research specialist at the HSRC, there has been a steady rise over the last 10 years in authoritarian state practices globally. With the declaration of states of emergencies, Steyn-Kotze warns that this trend may be exacerbated. Soft authoritarianism may evolve into harder forms of authoritarianism which, under the narrative of protecting citizens, limit opposition and freedoms in the interest of the ruling elite.

But in South Africa, a State of Emergency was not declared (deemed a measure of last resort) in  favour of a State of Disaster. The difference is not just semantic, but arguably portends to a more cavernous effort to depoliticise what is in actuality a highly political situation. Indeed, while a National State of Disaster had never in South Africa’s democratic history been declared, it was a less overtly political decision than issuing a State of Emergency, last declared in 1985 and again in 1986. 

To declare a State of Emergency would be to invite parallels with a historical past the current political order defines itself against. But to declare a State of Emergency in terms of Section 37 of the Constitution and the State of Emergency Act would be a constitutionally legitimate means of curtailing the rights and freedoms of which we are currently deprived. In comparison, the Disaster Management Act does not directly provide for how a State of Disaster is to be managed in a way that abides by the overarching values and principles of the Constitution.

In any event, the suspension of law – of human rights and freedoms, and the granting of extensive powers to the state and law enforcement engendered by the declaration of a State of Disaster, effectively constitutes a state of exception: a moment in the history of state-making where the state acts outside of its constitutionally ordained mandate, whether in times of war or national crisis. Political thought narrates that such moments are formative for the authority and legitimacy of sovereign power. 

For Professor William Gumede, executive chairperson of Democracy Works, this consolidation of state power is precisely what has been taking place in the violent enforcement of Covid-19 lockdown rules and the criminalisation of activities to promote transparency and democratic engagement in countries across Africa. Gumede spoke of the prosecution of journalists under criminal law in Ethiopia and Algeria, including Khaled Drareni, an editor at the Casbah Tribune, who was arrested for allegedly “inciting an unarmed gathering and endangering national unity”.

In South Africa, as elsewhere, the narrative of national unity has been mobilised, together with the directives to “stay home”, “wash hands” and “socially distance”, as part of a moral directive that renders it ethically impossible to conceive of an alternative way of acting and governing in these critical times. Tembeka Ngcukaitobi describes a “pervasive sense of paralysis” that characterises the current situation. This paralysis is, for Ngcukaitobi, moral: how can we possibly question the loss of liberty in the face of the loss of life? But the paralysis is political too. The virus, its effects and the governance thereof are presented as inevitable and without alternative. The possibility to think otherwise has been both morally and politically foreclosed, under the master signifier of “national unity”.

Protecting democracy

That these are unprecedented times echoes without pause in the corridors of global discourse. Yet, no moment ordained by the prescripts of law, such as a declared State of Emergency or Disaster, is unprecedented; rather, it is a moment in which precedents are created, precedents that will come to shape the legal order of the times and events which follow. As such, this constitutes a critical moment in which to preserve the principles of democracy in the decisions of the state with respect to the State of Disaster. 

For Professor Kate Alexander, chair of Social Change at the University of Johannesburg, there is a critical role to be played by civil society in promoting state accountability and democratic processes which is not being formally provided for under the current lockdown governance. At the seminar Alexander spoke of the establishment of the South African Covid-19 People’s Coalition following the presidential announcement of a lockdown on 23 March. 

Endorsed by over 240 civil society organisations, the People’s Coalition has published information about Covid-19 and the related regulations, as well as advocated for the protection of rights and the needs of marginalised groups. With the continuation of the lockdown until the end of April, and no date set for the lifting of the State of Disaster, the role played by such groups is integral in decentralising the power of the state and diversifying the narratives which structure this new reality.

More fundamentally, however, we are faced with a new kind of – unprecedented – politics, the effects, implications and modalities of which have yet to be fully explored or articulated. Within the context of such conspicuous social and global change, the politics of life and of living have taken centre stage in ways that have radically shifted their content and meaning, rendering urgent the task of asking: what does it mean to be human now beyond the language of rights? How can we resist the global singularity of the virus while engaging in an ethics of care for, and belonging with, others? And, can we anticipate a new politics of life that figures as the universal experience of the vulnerability of the human body? DM

Dr Rachel Adams is senior research specialist, Human Sciences Research Council and is editor of the South African Journal on Human Rights.