The decision by the Cabinet to again extend the National State of Disaster has reignited the debate around whether it is really necessary for our country to remain in this legal position.  

While many feel that the decision is overreach, or an attempt by the government to retain its emergency powers, this may just be the start of the real debate.

It is clear that we will need an amended Disaster Management Act to cater for future pandemics. The argument around what powers the government should have in an emergency situation is likely to turn incendiary in our politics. There’s a clear lack of trust, both between government and the governed, and between political parties. 

There can be no denying the extraordinary breadth and reach of the measures the government has been able to implement during the pandemic.

No one had foreseen the current National State of Disaster would give the Cabinet the authority to enforce a curfew, to ban mass gatherings, compel the wearing of face masks, and ban the sale of alcohol, tobacco and open-toed shoes.

It is mostly for this reason that the decision by the Cabinet to retain the current situation has seen so much opposition.

However, the Cabinet may not have had many options.

As disaster management studies expert Professor Dewald van Niekerk explained on Newzroom Afrika earlier this week, without the State of National Disaster there is no other way for any government to quickly introduce regulations to manage a resurgence of the virus.  

However, as he also pointed out, it would not be simple to declare an end to this State of National Disaster and just redeclare it later should that be necessary.

As he explains, a State of National Disaster “can only be declared once it has been classified as such. And the classification rests on the definition of a disaster, and that must be done by the head of the Disaster Management Centre. 

“So if the head of the centre deems it fit according to the science, he or she can decide whether to approach the minister to declare a National State of Disaster… It’s not a process of just Cabinet sitting and deciding. It goes through a technical process first.”

This would mean then that any attempt to redeclare a State of National Disaster would require that technical assessment. And of course, anyone would be able to challenge that assessment and the classification of a “disaster” in court.

To put it another way, if there was another variant of the coronavirus which was serious, but not as serious as the Delta variant, it may be difficult for the government to reintroduce the measures it used the last time.

It is also the case that under the Health Act, the minister of health has certain powers that could also be used. So, the minister could introduce regulations that would require the use of face masks or a ban on indoor gatherings, for example.

However, as UKZN public health expert Professor Mosa Moshabela has pointed out on SAfm, that would be less democratic than the current situation.

It would mean that one minister would have the power to introduce regulations, while under the National State of Disaster it requires the entire Cabinet to agree before the regulations are signed by the Cogta minister.

It is now likely that there will be a political discussion about what powers should be included and which powers should be removed from an updated Disaster Management Act.

We’ve got the power: Government hangs on State of Disaster to keep control

And while the measures currently contained in the act have generally stood up to challenges in the courts, political parties are likely to reargue some of the measures taken during the lockdown.

In some ways, this is one of the most important debates a democracy can have: what latitude should we give to our government’s undemocratic behaviour in a crisis?

It is for this reason that the Constitution is so clear on when a National State of Emergency can be imposed. One of the most important aspects of our National State of Emergency provisions is that it has to be renewed within certain timeframes by Parliament. The longer it goes on, the greater the number of MPs who have to vote for it.

This is obviously to prevent one party, or one group of people, from taking control of the country undemocratically, and indefinitely.

Yet, during the pandemic, under the National State of Disaster, there were curfews, Parliament did not meet physically, the sale of alcohol and cigarettes was banned, and it was all deemed to be legal. No court stopped any of the measures from being implemented in practical terms.

And it has been in force for more than two years.

This could then be the perfect time to have this debate, when the memories of what happened are so fresh and the lessons so well remembered.

However, there could be a negative aspect to this too.

Currently, because of the way that things happened, there are deteriorating levels of trust in government. Already, while the current National State of Disaster is in place, there is widespread evidence that many people are ignoring the regulations. 

Many are not wearing face masks or complying with other regulations. The strength of the law is itself weakening.

This indicates that when the situation is not being properly managed the current law loses legitimacy. That alone may be an important reason for a new law, which is better written.

Normally, in any debate around the powers that a government should have in an emergency situation, opposition parties can be relied upon to argue that the government’s power should be as weak as possible. It is generally in their interests to do so.

However, we are in a political situation where some opposition parties may believe that they will be part of the government after the 2024 elections. This means that the incentive for them to ensure that these powers are limited is not necessarily present.

So, this debate may be more complicated than it would normally be and the interests of the various political parties may be less clear than they were previously.

But again, central to all of this is the issue of trust.

If there is one thing that the unhappiness with the extension demonstrates, it’s that during the current National State of Disaster the levels of trust in the government have mostly collapsed.

This is a consequence of the government’s own actions: banning the sale of hot chicken cannot be justified. It failed to properly justify the ban on the sale of alcohol and tobacco (while it won the legal battles, the boost of the illicit markets in these goods demonstrates that the government lost the real war on these issues).

It may be that the most important problem a revised, new Disaster Management Act must resolve is how to regain trust in the government.

A good starting point may be almost complete transparency, where at all possible. The meetings in which decisions are made should be completely open so that the real arguments and the entire process are visible to all.

That would mean people could see the case both for and against different regulations and would know who is arguing which way. The last two years have shown that the closed nature of the meetings of the Cabinet (which makes the real decisions) and the National Coronavirus Command Council (which advises the Cabinet) has led to reduced levels of trust.

It may be key to fix this, to make the decision-making processes transparent, before working on the rest of a revised act. 

Unfortunately, there may be little appetite among our politicians for more transparency, despite the consequences of this.

To make things worse, there is also no evidence that any of what needs to be done will be done with speed.

This means that in a month’s time, in the middle of April, the current National State of Disaster is likely to be renewed for another month. Again. DM