First things first. This is not a column complaining about the “ban” on “hot cooked food”. While the “ban” on “hot cooked food” makes the government look churlish and spiteful, and while it is not immediately clear how this “ban” advances the aims of the lockdown, the “ban” – on its own – is of little consequence, given the heavy-handed actions of police officers and members of the military, and the hunger and economic destitution facing many South Africans.
Instead, this is a column about how the lockdown, and the manner in which it is being managed, threatens respect for the Rule of Law.
Recall that Minister Ebrahim Patel insisted last week that the lockdown regulations prohibited supermarkets from selling hot food. The Companies and Intellectual Property Commission (CIPC) which administers the certification of essential services during the lockdown later went even further by claiming (in a now-deleted tweet) that this “ban” included frozen foods, where food had been cooked and then frozen (not frozen meat or vegetables).
These claims were all untrue as the regulations at the time allowed the sale of “all food products”. The government, in effect, admitted that these claims were false by later amending the regulations to prohibit the sale of “hot cooked food”.
This was not the first time that ministers and officials had decreed that the sale of some goods were prohibited – despite the fact that the regulations were, at best, unclear about this and, at worst, allowed for the sale of the goods. Moreover, I worry that statements by ministers from the “law and order” wing of the executive, threatening members of the public and seemingly encouraging heavy-handed police action, have contributed to belief among some members of the SANDF and the SAPS that they have carte blanche to flout the law and to “punish” individuals who they believe are in breach of the lockdown regulations.
The constitutional problem here is not related to which products are classified as essential goods and which not. People are going to differ on this, and while I think some unwise choices have been made, this is not a matter of fundamental principle. Neither is this about the sadly bellicose rhetoric of some politicians.
The problem relates to the lack of respect for the Rule of Law. It speaks to the attitude of some the ministers and officials who regulate the lockdown, and of some of the police officers and soldiers who enforce it, that “the law is what we say it is”. This attitude, taken to its extreme, leads to the kind of situation that led to the alleged killing of Collins Khosa by members of the SANDF.
Section 1(c) of the South African Constitution states that the Republic of South Africa is one, sovereign, democratic state founded, among others, on the value of the Rule of Law. This provision enjoys special protection and can only be amended with support of at least 75% of the members of the National Assembly.
The Rule of Law, which Marxist historian EP Thompson famously called “an unqualified human good”, is of pivotal importance to protect everyone from the arbitrary exercise of power and from the abuses that inevitably flow from this.
Two aspects of the Rule of Law are of particular importance in the current situation. The first is that the exercise of public power must be authorised by law. This means that when the government decides to prohibit a certain activity (like selling non-essential goods), any prohibition must be authorised by specific legislation (or in the current case, regulations). In the case of the lockdown, this is done through the regulations promulgated in terms of the Disaster Management Act.
The second important aspect of the Rule of Law is that the law authorising the exercise of public power must be relatively clear. In the criminal law context this is referred to as the ius certum principle (the principle of certainty), which means that the crime must not, as formulated, be vague or unclear. Every person must be able to understand exactly what is expected of him or her. In other words, the definition of a crime should be reasonably precise and settled, so that people need not live in fear of breaking the law inadvertently.
In this sense, the Rule of Law provides important protection against arbitrary rule by Cabinet ministers, government bureaucrats and police officers. When the Rule of Law is respected, a citizen will not face arrest for doing something that is not prohibited by the law, just because Cabinet ministers, government bureaucrats or police officers decreed that it is prohibited.
When a Cabinet minister decides that a certain activity is undesirable and announces that it is prohibited, despite the fact that the law does not prohibit it, he or she arrogates for him or herself the power to rule by decree. The same is true of a police officer who decides to arrest a person for something that the police officer frowns upon, but which is not prohibited by the law.
Similarly, where the legal rule is vague and it is impossible for a citizen to know with reasonable certainty what he or she is prohibited from doing, it creates a situation in which individual police officers and soldiers may make up the rules as they go along.
When this happens, the rules are enforced in an arbitrary and unpredictable way, in the sense that one police officer will decide to arrest somebody for doing something that may or may not be a criminal offence, while another would not. Even citizens who try to abide by the rules may be arrested, not because they broke any rules, but because an individual overzealous police officer has arbitrarily decided that a rule prohibits something.
In the current circumstances, where the stated aims of the lockdown are so clearly worthy of support, and the goodwill of the president and his most competent Cabinet ministers not in doubt, it might be tempting to turn a blind eye to the erosion of the Rule of Law. But this would be a mistake. Respect for the Rule of Law – even during an extreme crisis like the one we are living through at the moment – protects citizens against arbitrary rule and the inevitable abuses that accompany arbitrary rule.
Now, it is clear that in a constitutional democracy founded on the value of the Rule of Law, the mistaken claims by a minister that certain actions are prohibited, does not have any binding legal effect and cannot change the wording of the law. It is also clear that an arrest by a police officer for “infringing” on this imaginary breach of the law would be unlawful. But that does not immediately assist a citizen who is wrongly arrested by a police officer. While the victim will later be able to sue the government and while he or she will never be prosecuted successfully, he or she will not escape the consequences of an arrest.
There is an additional reason why respect for the Rule of Law remains pivotal during the current crisis. The lockdown regulations are draconian in scope and effect. But the regulations do not affect everyone equally. While middle- and upper-middle-class people with secure employment are being inconvenienced by the lockdown, the effect on financially insecure and destitute South Africans is clearly catastrophic.
At the best of times, this would make it difficult and even (on a personal level) undesirable for many South Africans to comply with all the regulations. But when the rules are arbitrarily enforced, and when individuals are arrested on the whims of individual police officers, it further erodes support for (and thus compliance with) the regulations. This will hamper the effectiveness of the effort to slow down or suppress the spread of Covid-19.
To make matters worse, the response of the law and order wing of the executive has been to encourage the police to arrest more people in a more heavy-handed manner. It was reported over the weekend that more than 10,000 people have been arrested in KwaZulu-Natal alone for allegedly breaking some or other lockdown regulation. This is an astonishing figure. Moreover, while some regulations are being enforced vigorously, a blind eye seems to be turned about the flouting of other regulations – such as the ban on evictions.
All this reminds us again that the arbitrary interpretation and enforcement of legal rules have a disproportionate impact on the vulnerable and the marginalised, which is why respect for the Rule of Law is not a luxury, but a necessity. DM