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Please Mr President, don’t let the military and police subvert the rule of law

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

What the country now fears are Covid-19 responses by law enforcement agencies that threaten the safety and security of communities.

Dear President Cyril Ramaphosa,

Covid-19 seemingly is approaching the high lethal levels of the influenza pandemic of 1918-1919 — and it might get even worse if there is a secondary outbreak. You probably are inundated with calls to lift or soften the lockdown. I do not envy you your position, particularly considering the statement made on 12 March 2020 by the director-general of the World Health Organisation, Tedros Adhanom, warning that “countries that decide to give up on fundamental public health measures may end up with a larger problem and a heavier burden on the health system that requires more severe measures to control”.

But a new problem is emerging. What the country now has to fear are Covid-19 responses by law enforcement agencies that threaten the safety and security of communities. Specifically, alleged misconduct by some members of the South African National Defence Force (SANDF) and the South African Police Services (SAPS) is detracting from the good job you have been doing since the start of the country’s Covid-19 response.

“Sic utere tuo ut alterum non laedas” and “salus publica suprema lex est”: Mr President, you are schooled in law and I hope will understand my reference to the two principles that democracies based on the rule of law use to justify and sustain the powers of public health law enforcement agencies. Sic utere tuo ut alterum non laedas (use that which is yours so as not to injure others) and salus publica suprema lex est (public wellbeing is the supreme law).

It would seem South Africa is backsliding from these principles and also from the rule of law and human rights in general since the introduction of a law enforcement dimension to the Covid-19 response. Several articles and commentaries have been written about Covid-19 and the duties of governments to ensure citizens’ and residents’ rights to health are protected. The question on the lips of many is whether the lockdown is working and whether it is the best solution. And the government is urged to start looking for alternatives.

Some reports indicate a worrying trend of human rights abuses. “Like the SANDF members who walked into a man’s home, opened his fridge, found a beer, and then beat him to death with sjamboks. Just like our slave masters used to do. Nine people have been killed by police and SANDF brutality since lockdown. On 3 April, 30 cases of misconduct were registered at IPID,”  read one open letter to you, Mr President, published by Daily Maverick.

Others have branded the implementation of the lockdown as akin to having placed South African democracy in the emergency room. Shades of the apartheid era are beginning to rear their heads.

“There the police and the army have behaved in ways indistinguishable from and reminiscent of the dark days of PW Botha’s successive states of emergency in the eighties,” reads a concern about implementation of the extended lockdown.

As if we were back in time during the apartheid period of yellow police vans pouncing on villages and shebeens, we have seen visuals of the SAPS and/or SANDF spilling drums and bottles of umqombothi (traditional African beer) without thinking such actions might be seen as heavy-handed.

I had flashbacks to the growth of the “European beer” industry following the lifting of prohibition on the sale of so-called European liquor to Africans in the early 1960s while, on the other hand, African beer was banned by the 1927 Liquor Act. Interestingly, in 1937, the Johannesburg municipality assumed the monopoly to brew traditional beer and banned Africans from brewing umqombothi and other African concoctions. One cannot even keep one bottle of beer in the fridge for the fear of being brutalised by the SANDF, who illegally gain forceful entry into houses and impose their own – and not yours, Mr President – ban on the drinking of beer in the comfort of our homes.

Acts of violence against the citizens and residents of our great republic heighten the fear that engulfs the country. People are asking what is next to come, on 30 April 2020. Is there going to be another extension of the lockdown? Or is the President going to step up the tempo through an Act of Parliament that declares a state of emergency, based on section 37 of the Constitution, according to which a state of emergency may be declared when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergencies?

Some may argue that Covid-19 does not present any sustainable justification to trigger section 37 of the Constitution. In my view, a health pandemic of the magnitude of the 1918 influenza pandemic and now Covid-19 is a public health emergency that calls for public health emergency powers allowing the government to take extraordinary powers to protect the citizens and to flexibly respond to the Covid-19 risks situations without having to strictly adhere to ordinary legal standards and processes.  Moreover, the Constitution provides no definition of “other public emergency”, leaving it to the governor to determine what constitutes an emergency.

The sometimes barbaric acts suffered by communities – in most cases poor and historically black communities – at the hands of the country’s security forces are worrying. It is because of such acts of criminality against citizens in the name of enforcing the lockdown that many are starting to doubt if the extension of the lockdown is legal. This is in addition to the constitutionality of some of the initial lockdown regulations being questioned.

Communitarian bases for subordination of individual rights

It is beyond any argumentation that the communitarian bases of the South African legal system and constitutional order give support for the subordination of individual rights during this dark time of Covid-19, because it is necessary for the preservation of common good – which in this case is public health. It is for this reason that people in South Africa have subjected themselves to quarantines and lockdowns. But that does not mean people must allow our country to become another of the despotic and militarised African countries, a country where little people do not matter. Reign in your troops, Mr President, you are the commander-in-chief.

The world is no longer operating in the beginning period of the 20th century, when there was a belief that rapid action by law enforcement agencies was necessary to preserve health, even if those actions infringed on individual freedoms. There are legal, social, economic and ideological imperatives and transformations that call for the limitation of such powers.

The actions of the SANDF and the SAPS have brought about profound changes in societal perceptions of the relative weight of individual rights vis-à-vis state powers during this lockdown. Take a moment, Mr President, and find ways to recalibrate the role of the SANDF and the SAPS in the enforcement of the lockdown.

I do not need to remind you that on 16 March 2020 the UN Office of the High Commissioner for Human Rights called on states to “avoid overreach of security measures in their response to the coronavirus outbreak” and reminded them that “emergency powers should not be used to quash dissent”. It also reminded governments that “any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory”.

The UN experts called on governments “to prevent such excessive powers to become hardwired into legal and political systems; restrictions should be narrowly tailored and should be the least intrusive means to protect public health”. They encouraged states “to remain steadfast in maintaining a human rights-based approach to regulating this pandemic, in order to facilitate the emergence of healthy societies with rule of law and human rights protections”.

Where is the proportionality and rationality of Covid-19 responses?

All individuals are entitled to human rights and should respect the human rights of others. The right to privacy, for example, is one of the rights that is coming into sharp focus because of the Covid-19 surveillance responses our government has introduced.

Human rights groups including Human Rights Watch, Amnesty International, Access Now, Privacy International, and 103 other organisations  (including Unwanted Witness of Uganda, Media Rights Agenda of Nigeria and Open Data Institute Privacy International, for example) released a joint statement on 2 April 2020 calling on governments to be cautious in their use of digital surveillance technologies to fight the Covid-19 pandemic to respect human rights. The joint statement reads, in part, that “surveillance measures adopted to address the pandemic must be lawful, necessary and proportionate. They must be provided for by law and must be justified by legitimate public health objectives, as determined by the appropriate public health authorities, and be proportionate to those needs… We cannot allow the Covid-19 pandemic to serve as an excuse for indiscriminate mass surveillance.”

Mr President, as a lawyer you are aware that lockdown regulations do not enjoy any form of a presumption of constitutional validity. Therefore, the South African Covid-19 regulations cannot be allowed to descend into “sledgehammer” measures as opined by Advocate Tembeka Ngcukaitobi SC.

Mr President, I do not believe you deliberately released on your people enforcers with sledgehammers. But only you, supported by the Minister of Police and the Minister of Justice, can stop the killing of your fellow South Africans. Please go back to the drawing board to determine if the current and future regulations are rational and their enforcement proportional. Is the lockdown and its enforcement compliant with the requirements of the limitation clause of the Constitution? That is the question that should underscore all Covid-19 responses moving forward.

As you are aware, Mr President, proportionality has many formulations, and built into it is the principle of rationality. The implication of proportionality, which was eloquently stated in one of the first cases of the Constitutional Court of South Africa, S v Zuma 1995 4 BCLR 401 (CC) 419, and later fully adopted by the same court in the death penalty case of S v Makwanyane 1995 3 SA 391 (CC), are the following pillars:

  • The policy or regulation interfering with the right must pursue a legitimate goal (legitimate goal stage). When formulating, adding or amending the regulations you or your team must ask the following questions: Which goals are and which are not legitimate? From the onset, crime control is not the legitimate goal of the Covid-19 lockdown regulations. Clearly, public health protection and promotion are the over-riding goals of the lockdown regulations;
  •  There must be a rational connection between the regulations and the achievement of the goal. In other words, interference with rights must be a suitable means of achieving the Covid-19 response goal, at least to a small extent;
  • The law must be necessary in that there is no less intrusive but equally effective alternative (necessity stage). So, for example, banning the sale of liquor serves a legitimate goal of promoting the lockdown and social distancing to stop the spread of Covid-19 and associated risks. However, beating up people drinking alcohol in the comfort of their homes amounts to extra-judicial banning of drinking alcohol and does not have any rational connection to the legitimate goal of preventing the spread of Covit-19. It must be called for what it is: dictatorship justice. It is not necessary to seize, forfeit and destroy a one-household liquor stash because the goal of keeping people from the streets is already achieved by the ban on the sale of liquor, unless the stash was bought in violation of the liquor ban or was used to host a group of friends and party-goers; and
  • The law must not impose a disproportionate burden on the right-holder (balancing stage; proportionality in the strict sense). The question is whether the interference with the right is justified in light of the gain in the protection for the competing right or interest?

Mr President, perhaps you need to seriously consider the fact that the lockdown regulations do not themselves carry limitation provisions, and be concerned about whether or not the authorities will have the foresight to implement the regulations in compliance with the dictates of the limitation clause of the Constitution.

Other countries, such as the UK, have couched their lockdown regulations in a manner that is self-contained and which explicitly addresses the issues of proportionality and rationality. This is a far cry from the South African regulations, which only recently inserted a provision in a form of Regulation 1A giving the Bill of Rights primacy in the event of uncertainty regarding the interpretation of the regulations under Government Gazetted Notice 43148 signed by Minister Nkosazana Dlamini-Zuma on 25 March 2020.

Take away

The implementation of Covid-19 responses has demonstrated the stark difference between “rule by law” and “rule of law”. The South African slide in rule of law in general and checks on law enforcement powers, in particular, is deeply concerning. And Mr President, you should be deeply concerned too.

As it is, South Africa’s rule of law index by the World Justice Project (WJP) is not on the stronger side of the rankings. The 2020 WJP Rule of Law Index puts South Africa at 45th for both criminal and civil justice across 128 countries — below countries such as Rwanda, Namibia and Botswana, and a lowly 110 out of 128 for order and security.

What should bother you, Mr President, is that South Africa’s ability to secure its people and property is becoming worse than that in countries torn by civil war and dictatorships such as Myanmar and Burkina Faso.

South Africa’s overall rule of law score between 2015 and 2020 has fluctuated between 0.58 and 0.59. If both the citizens and the law enforcement agencies are not kept in check during the Covid-19 pandemic, the country might slide further in those rankings. DM

Gallery

"Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c) it is prohibited to publish information through any medium with the intention to deceive people on government measures to address COVID-19. We are therefore disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information that you think we should know, please email [email protected]"

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