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In Covid-19 times, government’s power grab must be subject to expeditious and clearly defined oversight

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

The destruction of life that has been caused by Covid-19 prompted governments the world over to assume emergency powers. This has raised the spectre of long-term damage to constitutional democracy in particular and the rule of law in general.

While Viktor Orbán’s move in Hungary to eviscerate any legal restraints upon governance is the most dramatic move, similar consternations have been expressed about the governance of both Donald Trump and Boris Johnson, both of whom have revealed lukewarm commitments to accountability, whether by the courts or the legislature.

Recently Kenneth Roth of Human Rights Watch wrote:

“Recognising that the public is more willing to accept government power grabs in times of crisis, some leaders see the coronavirus as an opportunity not only to censor criticism but also to undermine checks and balances on their power. Much as the “war on terrorism” was used to justify certain long-lasting restrictions on civil liberties, so the fight against the coronavirus threatens longer-term damage to democratic rule.”

For this reason, concerns have been expressed that security influences should not override the direct and obvious health problems caused by Covid-19. The Disaster Management Act, which is the legal source for the current lockdown, and the regulations which have been published should not be conflated with the powers granted to government in the event that the President declared a state of emergency in terms of the State of Emergency Act of 1997 which, of course, must be read together with Section 37 of the Constitution.

The powers granted in terms of the Disaster Management Act are far narrower in scope. Section 27 provides the key to the analysis: 

(1) In the event of a national disaster, the Minister may by notice in the Gazette declare a national state of disaster if– (a) existing legislation and contingency arrangements do not adequately provide (b) other special circumstances warrant the declaration of a national state of (2) If a national state of disaster has been declared in terms of subsection (1 1. the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning for the national executive to deal effectively with the disaster: or disaster.

The following are then listed in s27(2) as the powers that can be legally exercised: 

(a) the release of any available resources of the national government. including stores, equipment. vehicles and facilities; 

(b) the release of personnel of a national organ of state for the rendering of emergency services; 

(c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances; 

(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life; 

(e) the regulation of traffic to, from or within the disaster-stricken or threatened area; 

(f) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area; 

(g) the control and occupancy of premises in the disaster-stricken or threatened;

(h) the provision, control or use of temporary emergency accommodation;

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic…

(j) the maintenance or installation of temporary lines of communication to, from 

(k) the dissemination of information required for dealing with the disaster; 

(I) emergency procurement procedures; 

(m) the facilitation of response and post-disaster recovery and rehabilitation; 

(n) other steps that may be necessary to prevent an escalation of the disaster, or to 

(0) steps to facilitate international assistance area; beverages in the disaster-stricken or threatened area: or within the disaster area; alleviate, contain and minimise the effects of the disaster;

S27(3) confines the exercise of the powers that can be exercised under the Act: The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption; or (e) dealing with the destructive and other effects of the disaster terminated by the Minister by notice in the Gazette before it lapses …

The exercise of all of these powers is subject to the scrutiny of the courts. They are a far more limited set than are the powers granted to the executive under a state of emergency and they must be shown to be necessary for the designated purpose. Thus the Disaster Management Act expressly limits rights such as those of association and movement but even here the limitation must be justified in law. That means that in terms of Section 36 of the Constitution, the limitation of movement or association must be justified in terms of an enquiry whereby the State must show that the limitation is designed to achieve a legitimate purpose, whether the limitation is capable of achieving the proclaimed purpose and whether the limitation infringes the impugned right as little as possible.

The lockdown may well be justified on health grounds so that the present limitation of movement and association can be shown to be vital for the flattening of the curve as the millions of newly found expert epidemiologists would say. But the regulations and enforcement thereof have gone much further. The banning of sales of cigarettes and alcohol may promote Minister Bheke Cele’s desire to fight crime but neither of these prohibitions appears to be justified either in terms of Section 27 of the Disaster Management Act or s36 of the Constitution as necessary to curb the disaster.

Outside of the specific powers set out in Section 27 of the Disaster Management Act, the rights protected under the Bill of Rights remain. The police and army would seem to have little of a legal basis by which to intrude on the privacy or dignity of anyone; hence the portrayal of violence that has been shown in the media is manifestly illegal. Similarly, the regulations cannot limit rights under Section 35 of the Constitution, meaning rights of arrested, detained and accused persons. Even in the case of what constitutes an essential service or a fair price for an essential product, the regulations cannot restrict the right of an affected party to access a court or independent tribunal which would be obliged to adhere to due process.

It was therefore disturbing to read regulations promulgated by the Minister of Justice in connection with restrictions of access to courts. Leave aside the quality of the drafting and the problems caused by two sets of directives issued on 26 and 31 March respectively, the broader point is that the Minister has sought to encroach on the powers of courts to determine which cases can be heard. These regulations go far further than a concern about crowding in courts. They trench upon the sole powers of courts to manage their affairs. This constitutes a breach of separation of powers which most certainly cannot be justified by way of ministerial regulations at the very least because the advice of the Chief Justice has to be sought in respect of regulations that affect the administration of courts in terms of s49(1) of the Superior Courts Act.

These encroachments of rights are made more problematic because of the less stringent oversight mechanisms under the Disaster Management Act as compared to a state of emergency. In terms of s27(5) of the Act, a national state of disaster that has been declared … (a) lapses three months after it has been declared; (b) may be terminated by the Minister by notice in the Gazette before it lapses in terms of paragraph(a); and (c) may be extended by the Minister by notice in the Gazette for one month at a time before it lapses in terms of paragraph (I) or the existing extension is due to expire.

Hence the Minster has significant powers to extend a declaration of disaster without any legislative oversight. By contrast, if a state of emergency is declared, s37(2) of the Constitution provides clear and short time limits before oversight kicks in; declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only(a) prospectively; and (b) for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time.

While it is understandable that the far more drastic powers available to the executive in an emergency should be subject to expeditious and clearly defined oversight, the temptation of members of the executive to move out of their designated lane during this lockdown is cause for concern and therefore some independent control. For this reason, civil society needs to be vigilant. While the judiciary has, in the two cases brought to date, been wise to defer to executive decisions made to protect the health of the nation, courts will remain the primary mechanism of oversight under the present dispensation. Securocrats need oversight even in the midst of a pandemic. Especially in the midst of the pandemic. DM

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