Imagine you wake up one sunny South African morning, switch on eNCA or SABC news and find an unfamiliar face in the place of your regular news anchors confirming the banner running across your TV screen that the news channel has been acquired by the state authorities in pursuance of a state of emergency declared the previous evening.
Welcome to Dystopia, a state of emergency – where ‘war is peace, freedom is slavery and ignorance is strength’ – George Orwell
The new anchor tells you that your city or town is now under the authority of a controlling officer, chosen by the President himself and that a list of regions and their controlling officers will be published in due course. You’re informed that regulations which govern your movements, rights and daily life are now in operation and that contravention thereof is a criminal offence for which you may be arrested by any policeman or soldier without a warrant. In fact, any soldier or policeman may now enter your residence or business, search you and any other person, your house, office or business premises and everything in it, and confiscate any object they deem necessary.
The authorities are even entitled by their own regulations to commandeer your home or business premises, should they suspect a contravention of their regulations, or if they need to do so in order to execute their functions. Criticising the government is now a criminal offence and all these rules and regulations are for the public safety and the maintenance and restoration of peace and order. You may even find that that certain news outlets have been closed down completely and that your access to internet and cell phones has been blocked.
This might sound like the makings of a cheap dysptopian fiction novel, but one would be surprised to find that it is a very real possibility and that the South African authorities have already drafted and is in the process of finalising regulations in pursuance of such a scenario. Did that get your attention? It should.
On 12 October 2017 a story broke via the Rapport newspaper about the South African authorities being in the process of formulating legislative Regulations to deal with the event of a state of emergency being declared in terms of the State of Emergency Act No 64 OF 1997. The latter statute allows the President of SA to declare a state or emergency over the whole or parts of the country under certain circumstances.
What really made the story worth investigating is that the applicable Act had been on the law books for the past 20 years, without any regulations being promulgated in connection therewith. This however is not strange, as the act only requires regulations to be made once an actual state of emergency has been declared. In 20 years there had been no need for such declaration nor regulations. Why now?
There is no need for these regulations as there is no state of emergency. What prompts the sudden urge to draft them at this time? This question is underscored when the discovery revealed that the current draft regulations are meant to be a kind of template as it were, to be tailored as required by a specific emergency situation. Why feel the need for a set of readily available one-size-fits-all regulations, especially when there is no emergency prevailing?
To compound these concerns, upon the revelation of these draft regulations, the Presidency disingenuously denied its involvement therein. It does not, however, deny that the regulations are being drafted nor the existence of an Inter-Departmental Task Team charged with the drafting thereof.
The SANDF readily admits to the media that it workshopped the draft regulations in October 2017, and even that it is part of the Inter-Departmental Task Team. Let’s be clear: the production of state of emergency regulations is by law the purview of the President. No public service department nor combination of departments would simply set off on a frolic of its own and start drafting on a matter which is the exclusive domain of the President. Such a process can only be in operation in the event that the President has proxied the departments to do so.
For the Presidency to simply deny that the President himself is involved in the actual drafting process, is semantic dishonesty. Why the President’s need to disingenuously disown knowledge of the ongoing process? Simply stated, why feel a pressing need to regulate now, when there is no emergency and to do so, in secret, while dishonestly denying the real facts?
Combine these questions with the incumbent President’s proven track record of dishonesty, his legendary problematic relationship with the imperatives of Constitutional obedience, and being judged by the highest courts in SA as severely delinquent in preserving the legal requirements attached to his office. Together with these factors, acknowledge his instinctive reflex of allowing personal and political benefit trump Constitutional and legal obligations, and any sober minded individual would get worried about what is cooking at Nkandla. Its a bit like Dracula publicly declaring his abstinence from drinking blood, while deep within the cellars of Transylvania castle, his most loyal vampires are writing the rules for blood-sucking orgies, just in case Dracula needs it. You know, like in case of an emergency.
Let’s have look at what an emergency might include or under which circumstances a state of emergency may be declared. The State of Emergency Act permits the declaration of a state of emergency when the life of the nation is threatened by war (SA would have to be in a full-scale war), should an invasion of SA occur, if insurrection or disorder occurs (which can mean anything from service delivery protest to fees must fall), should natural disaster occur or any other public emergency (a non-defined concept).
The regulations promulgated present to such a declaration must have as its reason the restoration of peace and order. Note that a state of emergency can be declared countrywide or restricted to specific areas. While war, invasion and natural disaster are pretty clear cut, insurrection, disorder and public emergency are not. Conceivably the latter terms are open to very broad and overly broad interpretation and thus susceptible to abuse by motivation other than Constitutionally sound reasons.
It is, for instance, entirely imaginable that political party X wins an election in a previous ANC stronghold, the latter’s radical supporters refuse to accept the result and start burning and looting large scale. A state of emergency is declared in that area and the government of the day, with the might of the state machinery and regulations behind it moves in to lay siege to and effectively wrest back de facto control, all under the guise of acting upon insurrection or disorder.
Or students and the public in general rise in grand scale protests for fees to fall, bringing three cities to absolute standstill, some violence occurs and the government, seeing that it is in fact a total populist rejection of the government of the day, invokes a state of emergency. One would be naive to fail to recognise, also, the current SA government and its blindly loyal MPs’ penchant for openly incredulous and cringe-worthy acts of ridiculous bravado while they brandish, mostly mistakenly, the shield of empowering legislation. Face it, history is littered with the governing party using for the wrong reasons the right legislation.
Let me also be very clear, it is as the civil rights activist group Right2Know recently stated, that there is no good state of emergency. But, given the far-reaching curtailing of rights which accompanies a state of emergency and the political abuse for which it might be invoked, the public has the fullest right to be concerned about the entire framework upon which such legislation is based, the conceptualisation thereof and the final content. There can be no reason to keep the formulation of such legislation hidden from public input and consultation unless the inherent motive to do so is untoward and for constitutionally dubious purposes.
SA’s constitutional foundations is built on transparency, participation and strong protection of human rights. Any process attempting to dodge these principles should be questioned and vigorously so. In my view Right2Know is entirely correct in taking these matters so seriously that it has started a legal process through available legislation to gain access to all minutes, discussions and related material used in the concealed drafting process of these regulations so far. Journalists were also right to publish the draft regulations and thereby bringing it into the public domain.
“Until they become conscious they will never rebel, and until after they have rebelled they cannot become conscious” – from the novel Nineteen-Eighty-Four by George Orwell
A reading of the state of emergency regulations is hair-raising. I won’t repeat the contents as it is readily available at the links posted here. I will simply remark on a few issues in these regulations which are cause for concern.
The regulations in their draft form provides for a control officer to be hand picked by the President to exercise executive, regulatory and law enforcement control over an area in which a state of emergency has been declared. This control officer does not need to be a public servant. In fact the President is empowered to decide on the remuneration of such a control officer. This kind of regime allows for a variety of possible nefarious motives for control officers being picked for reasons other than a bona fide attempt at managing a state of emergency and other than in the interest of the citizenry. Think of how the President has thus far, in the normal course of politics seen to his cronies being appointed into positions – essentially to serve his own personal and political interests and then imagine what he might do with unfettered draconian legislation practically giving him a blank check to our constitutional bank account.
This control officer has the power to issue rules and regulations over the area he or she runs which include curfews, movement control and ordinary carrying on of daily business. The control officer has the power to direct and control all services infra structure, occupy business and residential premises and even forcefully remove people into shelters. The control officer also gets to scramble the cell phones in your area if deemed necessary and decide what news, if any at all, you’re allowed to see or hear. All in the name of peace and order.
Why does the government feel that it would be perfectly okay to have the president or any one individual for that matter, decide, without any reference in the regulations to vetting or transparency, nor for adequate qualifications and reasons, on the individual who is to be granted extensive powers to curb the constitutional rights of citizens? One has to wonder at why the drafters of the regulators simply ignore the fact that each magisterial district has a chief magistrate? Surely it is a much better regime to have actual sitting magistrates have the final say before a specific curfew or control measure is imposed. Take heed, even though the regulations determine that local elected structures remain in place, this is rather meaningless as the control officer is simply obligated to consult these structures before taking any action.
Under the draft regulations any police officer or soldier will be empowered to arrest persons without a warrant and detain them for a period shorter than 24 hours (apart from other periods of detention), all under the rather flimsy reason of having a “reasonable opinion” that your detention is “necessary” for public safety and the restoration or maintenance of peace and order. The possible abuses that may occur under this kind of jackboot justice are endless. Yes, police do that even now, but imagine them legislatively emboldened in such malpractices.
If you were thinking right now that these kinds of actions would certainly have people voice their disgust and protest very loudly, think again. Under these Orwellian regulations, it is prohibited for any one to possess, disseminate, distribute, make, print, record, utter, play or display any criticism which has the affect of causing animosity with another group of persons (think of a group supporting the government actions) or which has as its aim to rile up anti-government sentiments. Criticise the military, police or control officer in any way and you are subject to arrest and stand charged with a criminal offence carrying a maximum three-year imprisonment sentence. Free speech much, anyone? Forget about a speedy trial, because the Constitution of South Africa specifically excludes the right to a speedy trial in the event of a state of emergency.
It is mind-boggling that the drafters of the regulations would think that any emergency would ever be of the nature that that it could lawfully require that criticism of government and free speech be prohibited. One has to wonder at how many of these drafters, having faced severe criticism in their daily bungling of governing South Africa, had their hands itching at the chance of just once “legally” prohibiting criticism against them. This prohibition will never muster constitutional measure. Even attempting to cast it into the emergency regulations, speaks volumes for the mentality prevalent among the drafters and simply casts even more aspersions over the motive behind the contents and timing thereof.
The State of Emergency Act provides that human rights organisations recognised in South Africa have access to detainees under a state of emergency. However, the regulations require that any human rights organisation wishing to have access to detainees is obliged, in the event of a state of emergency, to first register with DIRCO, who will decide whether they get recognised or not. Those who do get recognised, will be on a list of legal organisations. So we’re back to classic apartheid “lists”. Only this time, the banned organisations are listed by default of not being on the legal list.
This proposition is preposterous, to say the least. Current legally functioning human rights organisations in South Africa like Lawyers for Human Rights, the Socio Human Rights Institute (SERI), Section 27, Right2Know, Legal Resources Centre, Black Sash, Human Rights Watch and Amnesty International, to name a few, would effectively lose their right to operate in South Africa. Its continued activities would entirely be at the behest of the Director general of DIRCO. So a top government official, of the very government being accused of human rights violations and detention of its citizens, will get to decide which human rights organisation is allowed protect citizens.
It is generally unlawful to terminate existing rights of organisations. It is equally unconstitutional for any legislation to provide that an authority with a material and direct interest in the outcome of a decision, gets to make that decision. Remember how the High Court recently lambasted the President for not observing this very basic tenet of administrative law? The dirty fingerprints of Zuma and his like-minded loyalists are all over these draft regulations, that much is clear.
Anyone serious about the rule of law and observing a culture of human rights should vehemently protest the contents of these draft regulations. South Africans should be very worried that these draconian rules are being hatched in secrecy and that the presidency outright lies about the fact that its being done.
Hopefully the vigilance and persistence of the media and very many rights organisations in South Africa will play an effective role in assuring that the regulatory regime of a state of emergency, as undesirable as it may be, is the end product of a participatory, transparent and democratic process. It affects us all. It should concern us all greatly. DM
Pikkie Greeff joined SANDF in 1993 as law officer in prosecution and later Defence counsel. He was admitted as advocate to High Court in 1997. He started at SA National Defence Union (SANDU) in 1999 as chief legal advisor, and was appointed as SANDU National Secretary in 2008.