Covid-19

Analysis

Ceding control to faceless securocrats and unaccountable governance structures chips away at SA’s constitutional democracy, one broken bit at a time

Police officers direct and check the movement of people in Cape Town during the national Covid-19 lockdown. (Photo: EPA-EFE / Nic Bothma)

The hard Covid-19 lockdown is being used to push agendas against the backdrop of the unconstitutional and unaccountable structures which now determine, in no small measure, how the country is run.

Central to the current setup is NatJoints, the National Joint Operational and Intelligence Structure, that brings together the SAPS, the South African National Defence Force (SANDF) and State Security in a structure that does not publicly account – and is not established in law or regulation.

NatJoints is involved with monitoring the Covid-19 hard lockdown, implementing and even drafting at least a first take on regulations. That emerged in the first lockdown regulations that (briefly) included a wholesale indemnity of security services that’s not even possible in a State of Emergency. It’s on public record before lawmakers how NatJoints drafts plans for the National Coronavirus Command Council (NCCC) – and the SAPS “operationalises” NCCC decisions.

Similarly, the National Coronavirus Command Council. It emerged as a central decision-maker over the past two months even though it’s also not established in law or regulation – unlike the National Security Council, which President Cyril Ramaphosa gazetted on 27 February.

Yet, the NCCC grew legs, with provincial counterparts established in all but the DA-run Western Cape as part of a parallel governance system not outlined in the Constitution, like NatJoints that has provincial entities reporting to it.

That extraordinary measures to save lives are needed in the Covid-19 public health emergency brooks no argument, particularly in a country where years of HIV-Aids denialism, according to some estimates, cost over 300,000 South Africans their lives.

But in 2020 different dynamics prevail.

A factionalised governing ANC and a fractured national political landscape is underscored by unaccountable securocrat structures, NatJoints and the NCCC. A weak public administration is now focused on ministers’ directives that become edict sans Parliament and the usual legislation-making public consultation processes to give effect to agendas.

Sharp and widespread criticism came from the public and industry. By then it was clear the illicit tobacco trade, alongside alcohol, was roaring – to the benefit of criminal networks, and a R1.7-billion loss over 29 days in April 2020 to state coffers.

Framing the Covid-19 public health emergency as a nationalistic imperative of saving lives draws on a ‘with us or against us’ narrative. The governing ANC statements often repeat the motto – “We Must Do Whatever it Takes”.

Against this backdrop, public criticism of government actions is responded to sharply.

Health Minister Zweli Mkhize described as a “public attack on government” the “factually incorrect and unfounded statements” by the Medical Research Council (MRC) president, Professor Glenda Gray, who had described some lockdown regulations as “unscientific” and thumb-sucks.

She, like several other health scientists – and economists, analysts, and many others – has called for an end to the lockdown, although not the physical distancing and hygiene measures, as the lockdown itself had served its purpose. 

Coincidentally, Mkhize is on public record as saying all that could be achieved to flatten the curve with the lockdown had been achieved.

But Acting Health Director-General Anban Pillay took up the cudgel and in a letter to the MRC board dated 22 May, published by GroundUp, called for an investigation into Gray’s conduct “given the harm it has caused to South Africa’s Covid response”.

That approach echoes Presidency Director-General Cassius Lubisi’s response to advocates Nazeer Cassim (SC) and Erin-Dianne Richards’ concerns over the constitutionality of the NCCC.

“Their insistence on putting in jeopardy all measures taken to save South African lives and ensure security of public health is not commensurate in our respectful view with their positions as officers of the court,” wrote Lubisi on 4 May.

The potentially chilling effect on the public discourse from such official responses comes alongside a slow, but steady, creep into civil and human rights.

A curfew in lockdown Level 4. A police permit required to move house or business, and to leave a domestic violence situation by 7 June. An exit permit or authorisation from Home Affairs required for “approved essential travel for South Africans, who want to return to countries where they are based”, and reasons including study and family reunions.

The temptation is to use the cover of Covid-19 to push other agendas, and power plays. And South Africa would not be unique.

Hungary’s President Viktor Orban, more often than not described as a nationalist strongman, has made a successful power grab under the guise of fighting the coronavirus. At the end of March, the Hungarian Parliament passed an emergency law that effectively allows him to rule by decree until… whenever. Really. Because it is unlikely that the governing Fidesz party, which holds a (gerrymandered) two-thirds majority in the Hungarian Parliament, would go against its leader’s wishes.

That power grab has been sharply criticised as draconian and anti-democratic, whether in the Financial Times or The Guardian.

In South Africa, the State of National Disaster has allowed the executive sphere of state extraordinary power. But it’s not a blunt exercise of that power – unless at the hands and feet of police and soldiers.

Unlike in Hungary, for example, the courts play a central role, and several lockdown challenges are underway regarding specific regulations and the disaster management legislation.

Such legal challenges underscore President Cyril Ramaphosa on Sunday 24 May in his address to the nation, now saying Cabinet, rather than the NCCC, had decided on moving South Africa down to Covid-19 lockdown Level 3.

Previously, it was the NCCC that had decided. In his 23 March address to the nation, Ramaphosa said: “… the National Coronavirus Command Council has decided to enforce a nationwide lockdown for 21 days with effect from midnight on Thursday 26 March”. 

In his address to the nation on 9 April, Ramaphosa announced:

 “After careful consideration of the available evidence, the National Coronavirus Command Council has decided to extend the nationwide lockdown by a further two weeks beyond the initial 21 days…”

And then there is Ramaphosa’s social compacting.

Opposition political leaders have been consulted by him, as have traditional and religious leaders. But aside from the structured discussions with business and labour at the National Economic Development and Labour Council (Nedlac), the status of such consultations is unclear. Particularly, as decision-making remains firmly the prerogative of the executive collective – whether that’s viewed as the NCCC, or Cabinet. Or maybe both.

Following advocates Cassim and Richards’ letter to the Presidency to question the NCCC’s constitutionality and Parliament’s lack of presence, a semblance of consultation has emerged.

On Tuesday, Co-operative Governance Minister Nkosazana Dlamini Zuma and Mkhize will brief the National Council of Provinces (NCOP) on government’s Covid-19 lockdown.

It is an important session for the rebuttal of critique that the executive during this period is not accountable to Parliament, as ministers must be in terms of Section 55(2) of the Constitution.

It is against such dynamics that the lobbying for agendas and the securocrats’ power play unfolds.

A keyhole view came on the reversal of Ramaphosa’s 23 April announcement that the cigarette sales ban would be lifted at lockdown Level 4. The ban stayed put when Dlamini Zuma, on 29 April, announced the details.

Sharp and widespread criticism came from the public and industry. By then it was clear the illicit tobacco trade, alongside alcohol, was roaring – to the benefit of criminal networks, and a R1.7-billion loss over 29 days in April 2020 to state coffers.

But the government officially dismissed any disjunct in executive ranks, arguing the presidential announcement had been made before the NCCC decision had actually been finalised.

The ANC stepped in on 3 May, saying in a statement that criticisms of Dlamini Zuma “mostly come across as racial and misogynistic”.  Amid spreading speculation that the ban on cigarettes would stay put even as the lockdown eased a little more, on the eve of the presidential address, on 23 May, the ANC again defended Dlamini Zuma, who at its 2017 Nasrec leadership election narrowly missed becoming president.

“It must always be remembered that the decisions of Cabinet and the NCCC are collectively taken, and should never be individualised. It is entirely unacceptable that there are evidently wedge drivers, who are in the service of certain businesses,” the ANC said in a statement issued late on Saturday evening. “We call on Dr Nkosazana Dlamini Zuma to remain focused and to continue with the excellent work that she is doing as part of the collective.”

Dlamini Zuma has continued to push for the continuation of the ban on cigarette sales and booze, according to Bloomberg. It echoes back to her days as democratic South Africa’s first health minister, who oversaw the legislated ban on cigarette advertising from early 1999.

Meanwhile, Police Minister Bheki Cele enthuses about the booze ban. It effectively is doing the police’s job for them – from pushing down crime to closing those liquor outlets the SAPS has been unable, or unwilling as some would have it, to act against even though these are regularly identified in police annual reports as crime hotspots over weekends. 

The NCCC can’t take decisions for the government. It is not a constitutional, statutory or even regulatory entity. The Constitution in Chapter 5 puts executive authority in the president and Cabinet. Not a NCCC. 

In Friday’s televised lockdown briefing, Cele downplayed the cost of the illicit tobacco trade, saying it “did not start with Covid-19”. However, in the police sights are smokers found with cigarettes outside their homes, who must produce sales receipts dating to before the 27 March lockdown. (A genuinely ridiculous request to make – Ed)

As the government is moving to centralise food parcel distribution, the DA successfully took Social Development Minister Lindiwe Zulu to court, which, until the case is fully argued, has ordered an end to Social Development and police officials stopping NGO-run soup kitchens and imposing a load of bureaucratic requirements on private food initiatives as her draft directives outlined.

Ahead of the National Health Insurance (NHI), Mkhize is pushing for more resources for a public health system that is struggling, according to the government’s own assessment in the 2018 Draft National Quality Improvement Plan.

Trade and Industry Minister Ebrahim Patel has used his pen to produce directives on T-shirts to be sold only as undergarments and banning open-toed footwear. Such micromanagement has extended to decrees when companies may operate and at what capacity.

Like the planning model of district-based differentiated lockdown levels, it is, broadly speaking, a failure to recognise the interconnectedness of supply lines in a modern 21st-century economy. Not only has the alcohol ban cost the state coffers around R1.7-billion lost in sin taxes in April alone, but the booze ban also has shattered glass and bottle production.

But back to that tobacco ban lockdown Level 4 moment. Because when Ramaphosa walked it back, in his regular Monday newsletter on 4 May, he again emphasised the centrality of the NCCC in government decision-making.

“After careful consideration and discussion, the NCCC reconsidered its position on tobacco. As a result, the regulations ratified by Cabinet and announced by Minister Nkosazana Dlamini Zuma on 29 April extended the prohibition…”

This is where it gets democratically dodgy.

The NCCC can’t take decisions for the government. It is not a constitutional, statutory or even regulatory entity. The Constitution in Chapter 5 puts executive authority in the president and Cabinet. Not a NCCC. 

Arguing the NCCC coordinates as would a Cabinet subcommittee – Lubisi in his letter of 4 May told the advocates there were no rules how Cabinet must organise itself – falls flat.

Subcommittee decisions like those of inter-ministerial committees go before the Cabinet, given the emphasis on Cabinet collectiveness in decision-making – from policy, to draft legislation or where to get money for another state-owned enterprise (SOE) bailout.

Until the State of National Disaster was declared on 15 March, a Covid-19 interministerial committee headed by Mkhize and the National Institute for Communicable Diseases had been on point. Then Ramaphosa announced:

“… [W]e have decided to establish a national command council chaired by the president. This command council will include, amongst others, members of the interministerial committee and will meet three times a week, to coordinate all aspects of our extraordinary emergency response.

And on the Covid-19 pandemic, Cabinet merely seems to be “apprised” by the NCCC, for example, on progress and challenges experienced at Level 4 lockdown, as the official statement put it following the special two-day Cabinet meeting from 12 May.

What happens next in the Covid-19 public health emergency is important. It will test how far the turn to executive rule by ministerial decree and the parallel governance system of the securocrat NatJoints and NCCC will be allowed to undercut South Africa’ constitutional democracy.

Strictly speaking, State of Disaster coordination falls to the National Disaster Management Centre which, however, has been deathly quiet in this Covid-19 pandemic.

Ramaphosa in subsequent addresses to the nation talked of how the NCCC “decided” on the initial lockdowns and extension.

The legality of the NCCC is being challenged in court as is the role of Parliament in a State of Disaster.

But this is the conundrum: without a State of Disaster, or Emergency or other extraordinary dispensation, the Covid-19 lockdown regulations at all levels cannot be sustained.

The legally permitted maximum three-month State of Disaster ends on June 14.

The State of Disaster may be extended by a month – or up to a maximum of three one-month extensions. The Disaster Management Act is not quite clear, and open to interpretation. And there are court challenges.

Depending on how far the securocrats’ power push reaches, and also on prevailing agendas, the lure may well be there to extend month by month – till whenever.

Or to go back to point zero, and declare another State of Disaster, that for another maximum of three months would allow executive rule by ministerial decree.

Both scenarios would allow government to continue lockdown executive rule by decree and directive, rather than lawmaking through Parliament, the legislative sphere of state. The latter option is marginally less blunt, but is still a little like hitting the disaster replay button. Repeatedly.

The lawfulness and validity of the Disaster Management Act and the National Coronavirus Command Council are subject to court action.

What happens next in the Covid-19 public health emergency is important. It will test how far the turn to executive rule by ministerial decree and the parallel governance system of the securocrat NatJoints and NCCC will be allowed to undercut South Africa’ constitutional democracy.

Even in this Covid-19 pandemic, the Constitution is not just a nice to have.

Its Bill of Rights guarantees the human and civil rights and freedoms of the poorest and most marginalised.

Its founding values include human dignity and the achievement of equality. And democratic government to ensure accountability, responsiveness and openness. DM 

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