Questions over constitutionality of state of disaster

The veil of secrecy under which government discusses and decides on the extension of the national state of disaster and the subsequent unilateral regulations have left experts worried as it does not bode well for democracy.

While the national state of disaster, instead of a state of emergency, was a good call in response to the coronavirus pandemic, experts agree that bad implementation and a lack of oversight was disturbing.

“We do sit with a problem; while the Disaster Management Act might be a good Act, the first problem is it is not properly implemented and there is no requirement for oversight from parliament, especially after a long while,” said Elmien du Plessis, professor in the faculty of law at the North West University.

“One would expect that so long into the pandemic, the state of disaster mechanisms, similar to a state of emergency, would have been developed to ensure that there is input from parliament on the regulations.”

She said there was no duty for public participation and the National Coronavirus Command Council (NCCC) was discussing matters in secret, then making suggestions to Cabinet, also in secret, and then submitting regulations for promulgation.

South Africa has been under a national state of disaster in response to the coronavirus pandemic, which has given Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma enormous powers to control citizens.

“In a democracy that is founded on the values of openness and transparency, this does not bode well. We do not know how decisions are made or what they are based on, which makes accountability also difficult,” Du Plessis said.

She did not get the impression government was being malicious, but said the way decisions were made now was not a great precedent for SA’s democracy.

According to Du Plessis, although the decisions were legal and the processes followed in terms of the letter of the law, there were bigger issues about democracy and the values contained in Section 1 of the constitution that must be asked.

“I think there we are falling short,” she said.

Safura Abdool Karim, a public health lawyer and researcher based at the Wits School of Public Health, said the key difference between a state of emergency and a state of disaster was that the former suspended all constitutional rights.

She said under a state of emergency, the state could infringe people’s rights without any need for justification.

“There has been a series of judgments – the tobacco ban cases are a classic example – where one court found it justifiable and the other found it unconstitutional.

“Those cases would not be decided in that way if there was a state of emergency because the fact that rights are being infringed would be irrelevant,” Karim said.

She said this had seen an unprecedented use of the Disaster Management Act as it was not really contemplated that one would have a long-lasting disaster that would affect the entire country.

Karim said the Act instead contemplates very confined disasters, like floods and earthquakes that require people to mobilise and respond quickly, and then return to normal.

“It was not really created with this idea of us being in a state of disaster for a year. As a result, there is a lot less oversight than there would be in a state of emergency,” she said.

Karim said there was a question mark about whether or not it was constitutional to use this legislation in such a fashion because the country was now at the point where it has been under a state of disaster for 12 months.

“There has been no formal legal oversight mechanism. Although [President Cyril Ramaphosa] takes decisions with the NCCC, Dlamini-Zuma is publishing regulations unilaterally, and that becomes the status quo.

“She extends the state of disaster when she feels like it or for as long as she is allowed,” Karim said.