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Our Covid-19 back-door state of emergency – without parliamentary oversight


Xander Ehlers has lectured Jurisprudence in the Faculty of Law at the University of Pretoria and worked as a researcher on socio-economic rights and mining-affected communities with NGOs. He currently works on legal and philosophical aspects of land reform and privacy protection while pursuing postgraduate work. He writes in his personal capacity.

Our institutions are woefully inadequate to deal with the Covid-19 emergency regime. The emergency powers under the Disaster Management Act should be scrapped.

What options are available to the average person when the government sends soldiers into our communities, possibly resulting in death? Or when it fails in its duties to hold mining companies to their mining licences’ conditions to develop and protect the communities those same companies pollute and exploit? Or when Eskom causes the deaths of thousands of people every year because of its commitment to generating coal energy in a way that releases harmful pollutants into the air, and the government continuing to ignore air quality laws by issuing exemptions to the biggest polluters?

It is a fact of the structure of our society, our legal system and the culture of non-accountability in state administration that precisely those South Africans who need to be protected the most against the powerful are often left out in the cold to fend for themselves.

The lockdown regulations under the Disaster Management Act are the latest example of the state taking far-reaching and sometimes deadly action without adequate accountability measures being in place to protect ordinary people from abuses.

As with all exercises of power, the effects of the lockdown are unevenly distributed across our society. Those who are most likely to suffer domestic or prejudice-based violence, being mostly women, children and gender or sexuality minorities, are confined to the spaces where abuse against them is most likely to take place. The poorest, mostly black sections of society suffer the prospect of starvation and long-term privation, and people have already died, some (allegedly) at the hands of the police and military. On the other hand, the richer sections of society suffer inconvenience in the short term, and mostly economic loss in the longer term. In backyards or complex gardens behind large walls, the better-off in society remain isolated from the threat of state violence.

Few people seriously question the necessity for swift and profound measures in response to the public health threat that the Covid-19 virus poses, and this article certainly does not propose that the government is wrong to impose the lockdown.

In some circumstances, an effective response to an emergency requires giving the government powers it would not normally have, including the ability to suspend some freedoms and entitlements that citizens would normally enjoy. These special circumstances may take the form of states of disaster, states of emergency, states of national defence, or even martial law where legal oversight by the judiciary of the then militarised executive is more or less suspended.

South Africa has a long history of states of emergency. The apartheid government passed a variety of so-called security legislation providing for states of emergency. Declaring a state of emergency gave the executive the effective power to rule by decree, that is, to rule by their own say-so through issuing broad-ranging emergency regulations.

These laws and regulations resulted in the abduction, prolonged detention and torture of tens of thousands of people for any reason. Conditions were at their worst during the states of emergency during the 1980s.  

After statutory apartheid ended, the post-1994 legal order was supposed to move away from such an autocratic model of state administration, and towards a culture of accountability where exercises of power should be justified, rational and open to scrutiny and revision – even during emergencies. The supremacy of the Constitution also rejected martial law, insisting on legally regulated emergency provisions.

Section 37 of the Constitution, the States of Emergency clause, makes provision for strengthening the executive’s powers to rule in exceptional circumstances while requiring stringent oversight and specific limitations on the enhanced powers that the executive can yield in emergencies.

In terms of the States of Emergency clause (section 37), and the Limitation clause (section 36), the executive may, complying with strict conditions, still limit certain rights, such as restricting our free movement under the lockdown. The most important condition in the States of Emergency clause determines that Parliament, not the executive, has the final decision over the entire emergency regime 21 days after the declaration of an emergency. This means that an emergency regime and the emergency limitation of citizens’ rights by decree can’t continue for more than 21 days without Parliament’s agreement.

Unlike a state of emergency, extensions to states of disaster are not subject to parliamentary approval and the minister of COGTA can keep extending the state of disaster as long as she wants by publishing a notice in the gazette.

The current lockdown measures taken by the executive are extreme, and arguably have a much wider impact than any other state of emergency in our history. Indeed, the latest deployment of the SANDF is said to be the biggest ever, and South Africa will probably see the greatest economic downturn since the Great Depression. In the past week alone, 10,000 people were arrested under lockdown regulations in Gauteng. For comparison, during the apartheid state of emergency in 1985 around 10,000 people were detained, and in the 1986 state of emergency 12,000 people were detained.

Our current lockdown is promulgated under the Disaster Management Act, not under the emergency provisions of the States of Emergency clause in the Constitution and the accompanying State of Emergency Act. By declaring a “state of disaster” and not a state of emergency, the executive has more power than has ever been wielded, even in a state of emergency, while being almost totally unbound by mechanisms of parliamentary oversight and restraint found in the Constitutional provisions for emergencies.

The two are constitutionally very different, but in terms of practical power, a state of disaster gives the executive all the powers of a state of emergency, without any of the parliamentary oversight. It is therefore ironic that a stigma clings to states of emergency, while people accept the far-less restricted state of disaster relatively comfortably.

Short of going to court, citizens have no choice but to endure the sometimes arbitrary and irrational regulations, case in point being the banning and then later unbanning of warm food or frozen cooked food with the stroke of a pen. They must also endure the brutal exercises of power aimed at enforcing these regulations. Collin Khosa was (allegedly) beaten and killed by SANDF and JMPD members for (allegedly) having half a cup of alcohol with dinner and two beers in his fridge.

What is to be done? Parliament doesn’t have direct influence over the duration and scope of a state of disaster and the regulations that come with it, short of repealing or amending the act, but they do have some power over deployments of the SANDF. In terms of the Constitution and the Defence Act, the president must notify Parliament whenever the SANDF is deployed. Parliament may then, within seven days of being notified, confirm, change or terminate the deployment.

With the latest deployment of the additional 73,180 SANDF members, the President’s letter ended up with the Joint (between both houses of Parliament) Standing Committee on Defence on 21 April. The committee does not have any powers other than fact-finding and making recommendations to Parliament.

With only eight MPs present, the committee held a positively congratulatory meeting on 22 April with the minister of defence, senior military officials, and the military ombudsman to discuss the deployment of an additional 73,180 soldiers and the 33 complaints against the SANDF received since the lockdown. When the military ombudsman offered to give the details of the content of the 33 complaints against soldiers to the MPs, committee Chairperson Cyril Xaba declined, saying that the report on the numbers and traceability of complaints was sufficient for the time being.

In a statement after its meeting, the Committee said it “unanimously supported” the deployment of extra soldiers. Not a single MP responded to the thinly veiled threats of lawless excess by the military leadership. Shadow Minister of Defence Kobus Marais repeatedly lauded the SANDF for their “excellent” work. Parliament, it seems, declined to exercise their one direct competency over the lockdown measures, instead giving the military the kid-glove treatment. With Parliament docile at the moment and traditional protest in public places impossible, representative democracy is effectively suspended insofar as challenging disaster regulations are concerned. It is possible for this state of affairs to continue indefinitely unless the Disaster Act or the validity of the executive’s unprecedented interventions are tested in the courts.

Collin Khosa’s family have indeed approached the Constitutional Court, asking, among other things, for an order to establish a body dedicated to investigating police and SANDF brutality during the lockdown. They also allege that the SANDF was deployed in support of the police without a code of conduct, as the Defence Act requires. Beyond this point, it is also not clear that the already deployed soldiers received adequate training in policing, as the Defence Act requires. Besides the previously deployed soldiers, it would be difficult to provide the legally required training in the limited time available to those soldiers among the 73,180 new deployments who will be taking on policing duties.

In any case, limiting the accounting mechanism for lockdown regulations to the courts puts the most vulnerable in society in a double bind. Not only has the state of disaster hit poor people the hardest, but they are also the people least likely to access the courts or succeed in getting relief because of the impossible expense and onerous nature of legal proceedings against powerful actors like the state or large corporations. Even relatively well-off small and medium business owners or individuals would be extremely reticent to approach the courts to challenge the lockdown regulations.

Those who want to defend their rights against the strong, be they the state, mining companies or their employers, face a hard road with little help from the government. People mounting opposition to injustice often face the possibility of being intimidated or killed, their community being polarised against them, or their loved ones being harmed. Poor people have known this especially well.

Collin Khosa’s wife has learnt this. Sikhosiphi “Bazooka” Rhadebe’s loved ones know it. Nonhle Mbuthuma knows it. And there are thousands more who know it as they breathe toxic air or drink from our polluted rivers, even if we might never hear their names.

It’s more of the same. Why don’t our political representatives seem to know this? Are they content to continue the epidemic of non-accountability and leave the vulnerable to their own devices, even during an unprecedented accumulation of power in the hands of the executive?

There is no legal, political or moral justification for giving the executive the unfettered range of powers it enjoys under the current form of the Disaster Management Act. Our representative institutions are also simply not exercising the very limited powers they do have to hold the executive to account.

Parliament should immediately repeal or amend the act, and weed out other legislative provisions which amount to back-door states of emergency giving the executive full emergency powers without the oversight that a state of emergency would require. DM


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