LOCKDOWN DAY 721
We’ve got the power: Government hangs on State of Disaster to keep control
Extending the national State of Disaster for the umpteenth time has bought the government time to shift Covid-19 lockdown extraordinary measures into regular, ordinary law. South Africa’s constitutional democracy now is at a dangerous tipping point.
It should be that, were another Covid-19 wave to hit with a vengeance — it would be a surprise as South Africa’s public health and vaccine scientists have emerged as global leaders in this pandemic — a national State of Disaster could be re-imposed. That’s what this law is there for; exceptional measures for exceptional moments.
But after two years of a national State of Disaster, South Africa’s president and Cabinet seem reluctant to let go of the extraordinary powers conferred to the executive under this Disaster Management Act.
The swoosh of a ministerial pen in what’s officially called “direction”, can ban sales of open-toed shoes or cooked chicken, restrict alcohol at will, limit numbers at gatherings and ban travel across, in and out of South Africa, shut down establishments like clubs and bars, halt the processing of ID and permanent residency applications and impose a curfew.
That’s immense power.
‘Extra-ordinary powers normalised’
In the clearest signal yet that Cabinet does not want to let go of such controls, the proposed regulations under the National Health Act seek to normalise the extra-ordinary State of Disaster powers into ordinary law. With a few tweaks, like dropping the need for masks outdoors, and no PCR requirement for fully vaccinated travellers.
Read in Daily Maverick: State of disaster extension shows government doesn’t understand pandemic, says expert
“A person must, when in a gathering in an indoor public place, wear a face mask or a homemade item that covers his or her nose and mouth,” according to Regulation 16A(1) signed by Health Minister Joe Phaahla on 14 March for a 30-day public comment period.
Ditto, masks in public transport. Gatherings remain limited at half-full stadiums or venues — but only with vaccination certificates.
“During the Covid-19 pandemic the indoor and outdoor gatherings will be up to the 50% of the venue capacity may be occupied [sic] on the proviso that: (a) production a valid vaccine certificate [sic]; (b) they practice social distancing of at least 1m and (c) compulsory mask wearing for indoor gatherings,” according to Regulation 16J(4), followed by:
“Notwithstanding the provisions above, the attendance of a gathering without proof of vaccination shall be limited to 1,000 indoors and 2,000 outdoors…”
Curfews, alcohol and lockdown
Curfews are provided for in Regulation 16M alongside dealing with the sale, distribution and consumption of alcohol and putting South Africa or parts of the country under lockdown.
This is an unprecedented shift of the Disaster Management Act’s powers on curfews and possible limitation of alcohol meant to apply during a specific period of calamity, into ordinary and day-to-day law as regulations under the National Health Act.
“Night vigils and after funeral gatherings may be restricted as guided by the scientific evidence of the risk transmission. During the Covid-19 pandemic, the above-mentioned activities are prohibited.”
Meanwhile, the proposed Health Act regulations 15A to 15H entrench the State of Disaster measures on Public Works-run quarantine facilities and contact tracing. It also includes the possibility of a court order for quarantine if a symptomatic person refuses treatment that was most recently included in State of Disaster Regulations signed on 1 February 2022 by Cooperative Governance Minister Nkosazana Dlamini Zuma.
Bottom line? The proposed National Health Act regulations effectively cement into day-to-day ordinary law those extra-ordinary Covid-19 State of Disaster measures.
A ‘red flag’ for constitutional democracy
And while this may be dressed up in pretty words of continuing to save lives and livelihoods, such consolidation of extra-ordinary control measures in the executive is a red flag in South Africa’s constitutional democracy.
Alarm bells should go off that this is unfolding with the direct and central input of a securocrat entity of cops, spooks and soldiers, NatJoints (National Joint Operational and Intelligence Structure), that’s not established in law or regulation and operates without legislative or independent oversight. Particularly as legislated and regulated security entities exist — the National Security Council that President Cyril Ramaphosa revived on 27 February 2020, and the statutory National Intelligence Coordinating Committee (Niccoc).
Crucially, the proposed regulations talk of “in the Covid-19 pandemic”, without criteria to determine the end of the pandemic. For all intents, the government may decide to wait for a global proclamation from the World Health Organization, regardless of domestic circumstances.
In an official media statement, the Health Department on Wednesday afternoon said these proposed regulations — the public comment period closes on 15 April — are “part of the government’s transition plans from the current national State of Disaster…”
Those words gloss over two things — the politics behind finally being able to publish these Health Act regulatory proposals, and the securocrats’ role at the heart of governance.
More than two months after an initial presidential nod to a possible lifting of the Covid-19 lockdown amid public and opposition pressure, little seems to have shifted.
Necessary work remained unfinished, according to the statement of the 9 February meeting when Cabinet decided to approve “the final extension of the National State of Disaster to 15 March 2022…”
That’s after ministers had been “apprised on the work that has been undertaken through the NatJoints to determine the extent to which the management of the Covid-19 pandemic still required the existence of the National State of Disaster”, according to that statement.
By early March 2022, that work still wasn’t done. With another extension looming after having said there would be none, the Cabinet statement on its 9 March meeting was silent on ending the Covid-19 lockdown.
When asked about this in the Cabinet briefing on 10 March, Minister in the Presidency Mondli Gungubele stayed on message.
“We have made clear our intention: we want to do away with the Disaster (Management) Act. But we don’t want to leave a vacuum… You need to have measures in place… very soon there will be an announcement.”
Also on message was Dlamini Zuma in her one-page gazetted State of Disaster extension to 15 April that talked of “taking into account the need to continue augmenting the existing legislation and contingency arrangements undertaken by organs of state to address the impact of the disaster”.
This is the backdrop to the National Health Act regulatory proposals, gazetted on 15 March.
The provisions under the heading “Sharing Advice” with various Cabinet ministers — on curfews, alcohol restrictions, but also sports activities, “operations of economic sector”, and religious and cultural activities — seem aimed at addressing criticism that the health minister would have too much power if left in charge of Covid-19.
NatJoints in the heart of governance
Crucially, like the Cabinet statement of 9 February on Covid-19 and the State of Disaster extension, Wednesday’s Health statement puts NatJoints securocrats in the heart of governance.
“These regulations have been presented to the NatJoints structures including the Legal and Regulatory Measures Workstream (LRMWS) as per NatJoints resolution that all legislative frameworks to be developed outside the Disaster Management Act must be presented to the LRMWS.”
Effectively, this says the health minister had to get approval from NatJoints before he could sign off on the proposed regulations for public comment.
The official spin may well be about collective governance, but the centrality of NatJoints effectively means an entity comprised of police, defence and state security, which is not established in law or regulation and that does not account to anyone in public, has a significant, if not definitive say in health-related law.
This may just explain why the proposed National Health Act regulations echo so closely the Covid-19 State of Disaster lockdown regulations. And it may also explain some lockdown mess-ups like the curfew breaking South Africa’s supply lines as trucks can’t move overnight. Or the R1.7-billion lost over 29 days in April 2020 as a result of the booze ban.
Alarm bells should ring over South Africa’s constitutional democracy. According to the Constitution, Cabinet — the president and ministers — are the executive decision-makers. No one else.
Concerns were raised as far back as early 2020 when advocates Nazeer Cassim (SC) and Erin-Dianne Richards wrote to the Presidency over the constitutionality of the National Coronavirus Command Council (NCCC) after Ramaphosa at least twice said the “NCCC decided” in his televised national speeches.
The president became more circumspect, talking of how the Cabinet adopted NCCC recommendations. But the blurring of constitutional governance remains — this coronavirus command council effectively doubles up governance as it includes all Cabinet ministers, according to Ramaphosa’s June 2020 parliamentary replies.
Nor do governance, or the politics, follow the science.
Time to end the State of Disaster
It was time to end the State of Disaster — and to focus on vaccination, good indoor ventilation alongside an eagle eye monitoring any Covid-19 outbreaks, according to public health and vaccine scientists, including some who had served on the Covid-19 ministerial advisory committees.
“The vast majority of South Africans now have immunity, meaning Covid-19 in 2022 is likely to have a similar death rate to seasonal influenza (10,000-11,000 deaths a year) in the pre-Covid-19 era, as opposed to the 290,000 Covid-19 related excess deaths over the past 22 months of the pandemic, and much lower than the projected 58,000 annual TB-related deaths”, said health experts Francois Venter, Mare Mendelson, Jeremy Nel, Lucille Blumberg, Zameer Brey and Shabir A Madhi.
“We see no reason for the continued use of this legislation, nor for the National Coronavirus Command Council. In terms of SARS-CoV-2 the government should be single-mindedly focused on the vaccine programme and protecting health facilities from the impact of large numbers of admissions.”
Instead, another month’s extension of the State of Disaster is set come mid-April. That’s because the public comment period for those proposed Covid-19 regulations under the National Health Act only ends on 15 April.
Government is on record of its intention to lift the Covid-19 State of Disaster, but if other measures are in place.
If those regulations simply come into force, they effectively grant the president and Cabinet the extraordinary executive powers of the Disaster Management Act — without a declared disaster.
Thursday marks Covid-19 Lockdown Day 721. And South Africa’s constitutional democracy finds itself in a dangerous moment. DM
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