Opinionista Leandri Hattingh 6 May 2020

The protracted lockdown is morally indefensible

At the moment the hospitals are standing empty and we are wasting precious time, allowing the country’s economy and the spirit of its people to bleed profusely. Balancing the spread of Covid-19 against social and economic ruin is a dangerous game, but we are at the crease and the ball is heading for our wickets.

I started drafting this piece on the eve of the announcement that one of the most extreme lockdowns in the world will be eased. I have since taken comfort in the initial outline of a phased, nuanced approach by the government, that aims to balance the risk of Covid-19 deaths and an acutely overrun health care system with (mainly) the economic ramifications of a lockdown. It was encouraging to also see consideration given to “the well-being” of people, and what appeared to be an inclusive public consultation process. 

Alas, the devil is in the details, as we have since learnt, and the same, seemingly insurmountable problem that has plagued this government during its entire reign, including its handling of the Covid-19 crisis to date, is that things fall flat at implementation. There is a clear discord between the theoretic, perceived intention, and the actual experience of the South African on the street (or in this case, cowering in his/her home).

Most South Africans feel a sense of reassurance, comfort, hope and even pride when listening to President Cyril Ramaphosa outlining the high-level plans, only to be replaced by fear, distrust, anxiety and a growing despair when the bombardment by senior representatives of the National Command Council ensues while they flesh out the details. It is then we realise the principles of the plan may not be threading through to implementation. What is said is not being done. Not dissimilar to how we’ve come to know all politics in this country.

It may have served us to consider questions of morality from the outset, but when faced with a sudden, unknown, mortal threat, urgent, pragmatic decision-making leaves little space for such considerations. We rely on existing laws to protect us in these instances. Of relevance here, specifically, are the Bill of Rights and Disaster Management Act. But legislation can only go so far in deciding what is right and wrong, especially in unprecedented and complex circumstances. And if ever we’ve found ourselves in such a situation, it is now.

Now that we have passed the initial fight-or-flight phase of the threat and settle into dealing with a challenge we recognise will be present for some time to come, it is time we investigate questions around morality. This may help us decide which decisions to challenge, and on what grounds. When the dust settles, it may also help us revise our existing laws to better prepare us for future, similar challenges. 

 

It is true that we endow the organs of state with the power to make these decisions on our behalf by electing them into power. Of concern is that the contract we have with the government to uphold our best interest in the form of the Constitution appears to be increasingly eroded and undermined as this crisis unfolds.

 

The right to life may be considered sacrosanct and is recognised as non-derogable in the Bill of Rights. I think – with the exception of those in favour of capital punishment – we can all agree that no South African’s life may be taken by another. But is there a limit to what can be expected from – and enforced on – an ordinary citizen to protect against a potential threat to the life of a fellow citizen?

Consider the last time you went to the supermarket before lockdown – think of the people you saw: children, families, parents, grandparents, friends, young people, car guards, beggars, workers. Now imagine you have a potentially life-threatening illness. Imagine there is a cure available for your illness, but it is extremely expensive, and you can’t afford it. Imagine you could round up and ask all those strangers you saw that day at the supermarket to give up their jobs and livelihoods so that you may buy your cure. Would you? Could you expect their children to die of hunger for your sake? 

Let’s imagine that in addition, this disease of yours can only be cured if you are not to have contact with any other human for an interminable amount of time. Could you expect these strangers to stay in their houses or shacks or cardboard shelters until you are cured? To not come out to attend the funerals of their family members, access basic healthcare, or even just for a breath of fresh air? To die alone when they themselves get ill, to not be let out to take care of their own family members? Some may answer “yes”. But can you force them to do any of these things? Or phone the police and get them to force it upon them? And watch while they beat them to death with sjamboks?

You and your fellow supermarket attendees may well enter into an agreement after some discussion. They may offer some of these things out of a sense of duty to a fellow citizen; a sense of humanity towards you. But you will probably respect their rights to refuse all of them. And if you do come to an agreement, there would likely be terms on the limits of how long they are willing to endure this for, and to what extent. The decision, however, is being taken by a third party on behalf of all of you. It has been decided – in your name – that all of these people shall make these sacrifices. Do you feel morally entitled to this? Do you feel blameworthy? Does this third party have the moral capacity and agency to make this decision on your behalf?

This is our current reality. Not at the scale of supermarket attendees, but of an entire country. The expectations from ordinary citizens go beyond the ones mentioned above – South Africans are also being forced to give up their rights to bodily integrity by being subject to medical testing, treatment and quarantine against their will. Their right to freedom of expression has been limited by the regulation regarding the generation or spread of fake news. Their rights to access healthcare and education have been curtailed. The government is deciding all of our fates with day-by-day decisions which appear to, at times, change on a whim (refer to the cigarette ban debacle), and we have very little say in it – both the fraction of society at risk of dying from Covid-19, and the majority of nearly 60 million South Africans who may eventually get infected and shake off the virus, but suffer the repercussions of the lockdown for generations to come. 

It is true that we endow the organs of state with the power to make these decisions on our behalf by electing them into power. Of concern is that the contract we have with the government to uphold our best interest in the form of the Constitution appears to be increasingly eroded and undermined as this crisis unfolds.

The counter-argument is that the government will be providing for the basic needs of those they’re forcing to relinquish their rights to take care of themselves. It is hard to suppress a cynical smirk after writing that. I made the same smirk when President Cyril Ramaphosa announced in all earnest that no corruption will be tolerated in this effort, during his very first Covid-19 address to the nation. We now know how that turned out. The quantum aside (a full R350 for unemployed persons who don’t qualify for other UIF payments!), I remain sceptical about this government’s ability to care for us. It is abundantly clear not only from its history pre-Covid-19 – most South Africans have got used to providing their own supply of, or doing without, electricity and water – but also in the weeks during the lockdown thus far, that despite the prima facie good intentions, the government lacks the insight, foresight, maturity, finesse and sense of servitude to execute an efficient, effective, sensitive and well-timed intervention. They’ve thus far failed in the delivery of interventions meant to salve our wounds while they become gaping and spew blood. They also find it seemingly impossible to keep politics out of it – refer to the decision to allocate relief in the tourism industry according to B-BBEE principles

How much longer should we excuse them and wait for them to try again? One thing they have not failed in is coming down as hard as possible on ordinary citizens – making sure that no “luxury” (looking at that pair of socks behind the tape in the supermarket) is allowed, that no one is spared from suffering as ministers take free reign in decreeing new rules (occasionally unlawful) at their whims, and that all available force is employed to bully every South African into submission. Is this justified? Is it morally acceptable?

I suggest that it is not. When weighing harms and benefits, most people will intuitively turn to the principle of utilitarianism: in a scenario where we have to choose between the lesser of two evils, we must choose that which will result in the most benefit to the most people, or, conversely, the least harm to the least amount of people. At this stage it should be clear that an extreme, protracted lockdown in South Africa will harm more people – now and in generations to come – than it would benefit the few that may be protected against dying from severe Covid-19 and an acutely overrun health care system. Yet the government persists in touting the line that Covid-19 deaths will result in a collapsed economy. They have yet to provide the evidence supporting this claim.

Regardless of the utilitarian considerations, most societies also agree through expression in their moral codes and legislation, that certain human rights are inalienable. Basic human rights and freedoms are the reasons thousands of people over centuries have fought and died in wars and revolutions. Their absences are what societies reserve for their most dangerous criminals. They are central to what we consider to be lives worth living. The Bill of Rights makes provision for limitation on some of these rights, but only under very strict conditions. Limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose”.

These conditions are echoed in the Disaster Management Act, where regulations may only be issued “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”. It is ironic that we may have created a situation where the lockdown itself has become a disaster worthy of such interventions.

With imposing a general curfew (while other rules like the banning of social gatherings, banning movement unless for food, healthcare or performing a permitted job, and the banning of operation of restaurants and social hangouts, are already sufficient) and limiting outdoor exercise to 6am-9am (effectively an hour of daylight for some), there seems to have been a progression to finding justifications to allow freedoms, as opposed to finding justifications to limit them. It now places the burden of proof on the People to negotiate their basic rights. The People will always be underrepresented in such quick decisions, despite the somewhat farcical public consultation process being employed (public consultation, by the way, is not an allowance out of generosity from the government, as their attitude may suggest – they are bound by law to revise the National Disaster Management Framework based on public comment). 

Some of the Level 4 regulations suggest a blatant abuse of the power imbalance between the people and the government. It is good to remind ourselves – and them – that this is not only their moral obligation, but a legal one: each limitation on a constitutional right has to be absolutely necessary, and for as short a period as can be justified. This is not grey. If there is doubt, the benefit of the doubt should go in favour of protecting existing rights. Instead of asking “what more can we limit?”, the question should be (as it should have been all along): “is there absolutely no way we can do without this limitation?”

 

For now, every effort should be made to continue the scaling up of urgent healthcare services for severely ill Covid-19 patients. There should be a concerted effort to keep (and support) only those vulnerable to severe Covid-19 under strict isolation.

 

Another author has outlined in more detail how some of the Level 4 lockdown regulations do not meet these requirements. It seems then that on both accounts – of utilitarianism and a rights-based morality – the protracted lockdown is not only morally indefensible, but may, in certain aspects, be illegal.

Such is our collective humanity that most of us were willing to endure the complete abolition of our constitutional rights for a period of time in the name of the cause of protecting the lives of a small proportion of our society. But the abolition of basic human rights results in suffering, and there is a limit on the amount and duration of suffering an elected governing body can justly inflict in the name of any cause. There comes a point when the blood draining from the wounds becomes unbearable. There will come a point when society will start fighting back for its survival. It is at the core of being human. 

Yes, “this is not forever”, you might say. But after five weeks, the end is not yet in sight. The initial lockdown (now known as “Level 5”), was announced with clear time limits. There is no such time limit on the current Level 4 lockdown, and we are constantly reminded by the government that we had better behave or we may return to Level 5.

No form of oppression can last forever. Each society under oppression has a limit to how long they are willing to endure it. This differs according to its culture and value system – compare the Chinese response (or what we know of it) to lockdown to that in the US. These are uncharted waters – this is an experiment in how long traditionally free societies are willing to sacrifice their basic rights, and at what costs. Five years from now we might write about what these limits turned out to be. I am writing now that South Africa’s limit is approaching. Given the protracted and extremely securocratic nature of the lockdown to date and a society where life is normally treated as of little value for many in desperate circumstances – I am deeply concerned about the risk of this situation degrading into widespread civil unrest. Good intentions won’t count for anything then, and it will tip the scale of harmful consequences for everyone even further.

Those countries that were overwhelmed by Covid-19 unexpectedly, were saved the moral decisions we are facing now. By the time they instituted their lockdowns (and, in much more forgiving socioeconomic circumstances than ours), the disease had already gained momentum and was on a trajectory to spread and burn itself out. They are now in a position to start lifting those lockdowns as infection rates decline.

Their experience allowed us time to observe and act early on in the development of the local epidemic. I’m afraid I am also cynical about that response. Flattening the infection curve so far below our healthcare capacity is not something to be patting ourselves on the back for unless we were aiming for eradication in the early stages of the outbreak. We may have squandered that chance when the government delayed in rolling out the necessary testing, tracking and quarantining that has to accompany a lockdown to make it at all justifiable. In my opinion, flattening the infection curve so dramatically so early on without eradicating it points to failures – failures in testing and quarantining adequate numbers of exposed people during the start of the outbreak, and failing to appreciate the fact that every additional day in a lockdown has a myriad of serious, dire consequences for the whole of society. 

An infection curve so much lower than the expected now necessitates a protracted lockdown, especially as the existing healthcare infrastructure is so derelict that efforts to ramp it up to a capacity that can stave off an onslaught of exponential, serious Covid-19 cases will require much more time than it would have in countries with reasonable healthcare infrastructure, and may, in fact, be unattainable. To try and reduce the adverse effects of the lockdown we should at least be aiming for maintenance of an infection curve and its predicted severe cases just below our capacity to manage those cases. At the moment the hospitals are standing empty and we are wasting precious time, allowing the country’s economy and the spirit of its people to bleed profusely. Balancing the spread of Covid-19 against social and economic ruin is a dangerous game, but we are at the crease and the ball is heading for our wickets.

We may be fast approaching a point where we may have to admit that we have thrown everything we have at stopping the virus too early, and that we may still face the exponential increase in cases in months to come, when economic and social lockdown is no longer an option. Such an extreme measure is simply not sustainable. It worried me at the start of the lockdown that there was seemingly not enough appreciation of this, and for every day that we continue on this course, the consequences will amplify exponentially. We are reaching the limit of what can morally justifiably be asked of ordinary South Africans.

Thus far, the infection rate has not met original predictions in South Africa, and while it’s difficult to discern whether this is because of the lockdown or other factors, we have to keep adjusting our estimation of the threat. At present, I still support a smart, phased approach to try and keep the infection rate at a trajectory where we aim to minimise both the risk of the disease and the adverse consequences of a lockdown, but it has to be implemented with greater urgency and the acceptance of sacrifices on both, and a profound acknowledgement of the sacrifices on the latter, and we have to keep re-evaluating the balance. We cannot continue to be guided by a line that touts Covid-19 spread as the only threat. 

For now, every effort should be made to continue the scaling up of urgent healthcare services for severely ill Covid-19 patients. There should be a concerted effort to keep (and support) only those vulnerable to severe Covid-19 under strict isolation. Public messaging and support for the basic observations of social distancing and hygiene must be intensified, and large gatherings (of the likes of big sports, social or religious events) should be avoided for the foreseeable future. 

The rest of life needs to continue before there is nothing left of it. South Africans must be allowed, urgently, to take care of themselves again. They have been largely compliant and supportive of the national effort thus far, despite the most profound separation from their basic human rights since apartheid. They do not deserve to be treated like this any longer. They have a constitutional right and a moral claim not to.

Do away with arbitrary limitations on rights. Recognise the extreme consequences and unsustainability of the lockdown. Let us get on with obtaining a community immune to the virus, try to salvage what’s left of the economy, and be free and autonomous people again so that we can survive this with our wickets, faculties and hope for our future generations intact. DM

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