Has the COVID-19 pandemic exposed the fragility of South Africa’s constitutional democracy?

Author: Paul Mudau
PhD Candidate and Researcher, School of Law, University of the Witwatersrand

On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. This, was followed by a series of announcements and impositions of numerous lockdown Regulations and Directives that require hygienic practices, physical and social distancing, quarantine, and isolation measures.

While wielding unbridled excessive powers that restrain the exercising of citizens’ fundamental rights in the quest to defeat the COVID-19 pandemic, the establishment, composition, powers and functions of the South Africa’s National Coronavirus Command Council (NCCC) will remain a ‘mysterious mishap’ when judged from a constitutional and legal perspective. Reportedly, the NCCC comprises only of cabinet ministers. Contrastingly, section 8 of the Disaster Management Act does not mention anything close to the NCCC but the National Disaster Management Centre (National Centre) which forms part of, and functions within, a department of state for the public service for which the Minister of Cooperative Governance and Traditional Affairs, is responsible for its executive and administrative direction. More so, except for the National Centre, the Disaster Management Act additionally establishes the Intergovernmental Committee on Disaster Management and the National Disaster Management Advisory Forum in terms of sections 4 and 5 respectively. Given that South Africa has a decentralised form of government which is constituted as national, provincial and local levels of government, the nine provinces also followed the footsteps of the national government and established their own Provincial Coronavirus Command Councils (PCCCs).

It is important to note that the declaration of the national state of disaster by the Minister of Cooperative Governance and Traditional Affairs in the context of the current nationwide lockdown is dissimilar to the declaration of a state of emergency by the President as provided for in terms of section 37 of the 1996 Constitution, which would invoke the application of the State of Emergency Act (64 of 1997). As opposed to the Disaster Management Act, the State of Emergency Act permits for derogations of civil liberties enshrined in the Bill of Rights, however, subject to the Table of Non-Derogable Rights enumerated under section 37(5)(c) of the 1996 Constitution and clearly with some exceptions that include the rights to dignity, life and the right to a fair trial. The state of emergency may be declared when the life of the nation is threatened, among other factors, by a natural disaster or other public emergency and when it is necessary to restore peace and order. Should the health emergency caused by the Covid-19 pandemic escalate and lead to civil unrest, declaring a state of emergency may be justified and it has not been ruled out.

Section 37(3) of the 1996 Constitution charges any competent court with the discretion to decide on the validity of a declaration of a state of emergency while parliament retain an oversight role, including any extension of a state of emergency beyond 21 days, which must be approved by parliament, subject to section 37(2) of the 1996 Constitution. A declaration of a national state of disaster is a temporary measure in which certain rights may be limited. The declaration of a national state of disaster may be invalidated when deemed to be inconsistent with the requirements listed in section 27(1) of the Disaster Management Act.

Fundamentally, a number of constitutional rights have been strictly curtailed by the imposed lockdown Regulations and Directives. These include: the right to freedom of movement, freedom of assembly, freedom of association, freedom of expression, the right to education, freedom of trade, occupation and professions, the right to privacy, the right of access to information, and the right to bodily and psychological integrity. These rights may solely be limited in terms of the limitation clause stipulated in section 36 of the 1996 Constitution, to the extent that such limitations would be deemed reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

There are concerns expressed about the lawfulness of certain aspects of the government’s response to the COVID-19 pandemic, particularly in respect to several fundamental human rights enshrined in the 1996 Constitution. In addition, other foul-cries relate to the use of army, police and municipal enforcement officers in enforcing the lockdown Regulations and Directives, ensuing in a surveillance state, more power grabs among individual government leaders, the silencing of critics, widespread human rights abuse, and the undermining of the rule of law and constitutional supremacy. On 22nd of May, the Minister of Police announced that 230, 000 people had been arrested for contravening the lockdown Regulations and Directives.

From a critical standpoint, South Africa’s constitutional democracy is seemingly prone to the excessive powers wielded by the NCCC and whose security forces as enforcement officers are unjustifiably disregarding the constitutional obligation to respect fundamental human rights. The government’s response in dealing with fake news about the COVID-19 pandemic was also met with contempt after number of people have been arrested for contraventions. However, in certain cases, the government’s action is defensible. For instance, a man who widely distributed a fake ‘contaminated COVID-19 test kits’ video on social media was arrested and subsequently charged in terms of Regulation 11(5)(c) of the Disaster Management Act, in relation to ‘publishing any statement through any medium including social media with the intention to deceive any other person about measures by the government to address COVID-19’. As a result of this publication, the Gauteng department of health reportedly encountered difficulties with its community-testing initiatives as a result of the false claims.

Accusations that South Africa is gradually becoming a surveillance state were compounded when the Minister of Communications and Digital Technologies promulgated the Electronic Communications, Postal and Broadcasting Directions. In the same vein, Direction 8 required that the Electronic Communication Network Service (ENCS) and Electronic Communication Service Licensees, internet and digital sector in general, to provide location -based services in collaboration with the relevant authorities identified to support designated departments to assist and combat the spread of COVID-19 virus. As a consequent, this directive has triggered alarm as it authorised the government to ‘track and trace’ people who have been infected as well as those persons that may have been in direct contact with them. The concerned people’s location and movements are ‘tracked and traced’ using their private cellphones. Gary Pienaar decries the directive as follows:

This broadly-phrased power raised the spectre of state surveillance using digital location and interception of communications, which were reminiscent of apartheid-era spying and movement control, as well as of more recent political abuses of state security capacity.

In a supposedly liberal constitutional democracy such as South Africa, ‘lockdown brutalities’ must remain unjustifiable under all circumstances. The state’s will to prevent the increase in COVID-19 infections and deaths is not proportionate to the cruel and degrading retributions meted out by enforcement officers who preside over pervasive physical violence on citizens. A gruesome development relates to the death of Collins Khoza, after an altercation with members of the South African National Defence Force (SANDF) and the Johannesburg Metropolitan Police Department (JMPD).

The SANDF responded by conducting a whitewash investigation into his death. The investigation sought to deliberately exonerate its members as it shamelessly revealed that the soldiers ‘cannot be held liable for this death as there is no link between the injuries he sustained due to their actions and him dying’. The family of the deceased approached the North Gauteng High Court in Pretoria for relief and the court declared that the members of the SANDF are responsible for Mr Khoza’s death. The Court declared that members of the security forces must respect and protect rights to dignity and life, not commit torture, and only resort to minimum force to enforce the law. The court further held that the Ministers of Defence and Police must develop and publish a code of conduct and operational procedures regulating the conduct of their members, including that of the metropolitan police departments in giving effect to the state of national disaster Regulations and Directives.

It hereby argued that, in cases where a member of the public is deemed to be in breach of the lockdown Regulations and Directives to the extent that the situation warrants his or her arrest, the designated enforcement officers have to effect the arrest in full compliance with the applicable laws, more in particular, the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. Where a minimum use of force is inevitable, the enforcement officers should do so without exceeding the required legal parameters for using force in order to effect arrest. In other words, the enforcement of the lockdown Regulations and Directives should not result in the violation of the right to life or the freedom of security due to physical violence exerted by enforcement officers. Besides, there are numerous reports which depict the enforcement officers indulging in using various tactics of punishments on members of the public who have breached lockdown Regulations and Directives. For example, a video emerged on the internet showing soldiers punishing a group of men who failed to be confined at home by forcing them to repeatedly roll in the ground while onlookers cheered on (from the windows of their homes).

In cognisance of the above, it is reasonable to infer that the government’s current focus on curbing the COVID-19 pandemic has culminated in the non-compliance of its constitutional obligations to respect and protect fundamental rights and to uphold constitutional supremacy and the rule of law. Evidently, the government’s actions lack openness and fails to meet the proper accountability and responsiveness benchmarks envisaged by the 1996 Constitution. As a consequence, resulting in the erosion of the ethos, values and principles of constitutional democracy; a contemptible occurrence that takes place through the discrepant application and enforcement of the Disaster Management Act and the ever-conflated and misplaced lockdown Regulations and Directives. It is understandable that a responsive and accountable government is inherently consultative, but the untimely flip-flopping on key issues that integrally link the political preferences of the governing party and its oppositions on one hand, and the socio-economic priorities of the increasingly influential citizenry on the other, has exposed the viability of the NCCC in its response to the COVID-19 pandemic.

It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the NCCC mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy.

About the Author

Paul Mudau is a PhD Candidate and Researcher at the School of Law, University of the Witwatersrand. He holds an LLB from the University of Limpopo, an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, and an LLM in Law, State and Multilevel Government from the University of the Western Cape. His research interests include human rights, local government law, constitutionalism, democracy and public administration.