Government’s Covid-19 hard lockdown decisions meant a national curfew and requiring police permits to move house are now part of South Africa’s constitutional democracy.
It’s a replay of the securocrats’ push in the first regulations for wholesale indemnity for security services, a measure that’s not permissible even in the State of Emergency, according to the Constitution.
Then, the constitutionalists in Cabinet ensured the blatantly unlawful indemnity was deleted from the hard Covid-19 State of Disaster lockdown regulations.
Now those constitutionalists appear to have fallen silent.
Silent about the curfew that was not deemed necessary at Level 5, but now will remain in place even in lockdown Level 1. And silent about the moving house police permit – the first such police-dependent permission, as all other permissions, like attending funerals or moving children between parents living separately, are, quite correctly in a constitutional democracy, in the domain of magistrates.
Giving police, the representatives of the executive arm of state, the power to make decisions on details of people’s lives is not in keeping with a constitutional democracy.
It follows the turn to lawmaking by the stroke of ministerial pens – without public consultation, without the involvement of legislators.
Much of the Covid-19 hard lockdown government decision-making is informed by NatJoints, or the National Joint Operational and Intelligence Structure that brings together the SAPS, SA National Defence Force (SANDF) and State Security. Established by a Cabinet memo well over a decade ago without basis in legislation, it’s virtually impervious to oversight or accountability.
NatJoints helped author the first set of Covid-19 lockdown regulations, including the security services’ indemnity, and it is on public record from presentations to Parliament that NatJoints continues to daily monitor the lockdown and draft plans for the National Command Council, whose decisions NatJoints then “operationalises”, as the lingo of the police briefing went.
And even if other national government departments may be involved – and consultations with provincial and local government leaders and opposition leaders unfolded – the police, military and spooks have a heightened role in government decision-making. Particularly as at one stage government decision-making seemed to sidestep Cabinet in favour of the Covid-19 National Command Council.
The temptation is to shrug this off as what’s often called “middle-class problems”. But it’s not that. It talks directly to the shaping of South Africa’s constitutional democracy going forward, far beyond any Covid-19 lockdown.
Because, let’s be blunt, those who find themselves at the sharp point of bureaucrats’ officious caprices or of police and soldiers’ brutality are the hungry, and the working poor, not the middle class.
The Covid-19 hard lockdown has shown how police and soldiers may say they uphold South Africa’s constitutional democracy, but in reality, fall short.
Sjambokking and forced exercises the police and soldiers have been publicly caught out on are unlawful and – even in a declared State of Disaster – unconstitutional. Never mind the assaults and shootings.
And while rights may be limited, not even a State of Emergency changes the constitutionally guaranteed rights to life, to dignity, and not to be tortured in any way or to be treated or punished in a cruel, inhuman and degrading way.
And it must be re-emphasised that South Africa has declared a State of Disaster, which in law means assistance to the public – relief and mitigating the destructive effects of the disaster are central.
Some of it is in the language of kragdadigheid that is re-emerging, faster now in lockdown. Using terms like security or police force when the Constitution talks of security services. Or police talking of law and order and “stamping the authority of the state” rather than the Constitution’s safety and security.
Some of it is dangerous, disrespectful posturing.
“You’re not our clients. We are not the police. We take instructions from the commander-in-chief [President Cyril Ramaphosa],” SANDF Chief of Staff Lieutenant-General Lindile Yam told Parliament’s Joint Standing Committee of Defence on 22 April. His comments stand against Section 198(d) of the Constitution that gives Parliament, alongside the national executive, authority over national security.
Yam also said “the state is an instrument of government to ensure law and order is enforced”, in a clear disjunct from the Constitution’s preamble that talks of laying “the foundation for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law…”.
Similarly disjointed is the SAPS talk of “stamping the authority of the state”, which runs through its 2020 annual performance plan and longer-term strategic plan.
Stamping the authority of the state is inherently a forceful act. It does not easily, if at all, tally with the principles of national security outlined in Section 198 of the Constitution that it must “reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.
If stamping of the authority of the state is a desired SAPS performance outcome it indicates a loss of legitimacy. Seeking to restore legitimacy by stamping the authority of the state is part of a mistaken belief that compliance equals legitimacy.
It does not.
Democracy is messy. Throw into the mix South Africans being tjatjarag, and it’s even messier, while also full of potential. Then add the pressure of an aspirational Constitution that centres on dignity, a democratic open society based on social justice and human rights.
None of this is to the liking of those, who on the back of an inept public administration, are enamoured with shows of force and quick shortcuts and those who like linear, preferably top-down processes.
The Covid-19 State of Disaster seems to have bolstered those with a predilection for ministerial decree and edict away from the messy task of accountability and public consultations, but shored up by kragdadige security forces.
And so democratic South Africa ended up under a curfew, and with police having the power to determine whether it’s possible to move house within the month time-frame set by ministerial decree.
How much more space and powers securocrats are allowed to get – in Cabinet, or in society across dorpies, villages or cities – will ultimately determine the future of our constitutional democracy.
South Africa: Be Aware and Beware of The Rise of the Securocrats. DM
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