Previously I argued that a state of emergency should have been called to order the lockdown, since section 37 of the Constitution was crafted for making laws during emergency times.
It was crafted at a time when there was no emergency to guide executive decision-making that can have profound effects on fundamental rights.
To ensure that there is parliamentary and judicial oversight, and to curb executive overreach.
The point is now mostly moot because a state of emergency cannot be declared retroactively, and for now it is not unlikely that a national level 5 lockdown will be necessary again unless the numbers rise exceptionally, nationwide.
The main argument against the declaration of a state of emergency is that it can only be proclaimed to restore peace and order. And we do not, yet, have a problem with peace and order. I can concede that this is plausible on a literal interpretation of the Constitution.
It still does not solve the uneasiness that we, at least at level 5, had a de facto state of emergency, without the constitutional safeguards of section 37 to provide oversight over the executive. But the principles remain relevant, and it will be good if the judiciary can clarify the legal issues.
Oversight is not required just because the executive may act in bad faith. It is needed because, during a crisis, decision-making happens at a breath-taking speed, under difficult circumstances, and decision-makers must make decisions in the moment.
Decisions that might have an impact long after the emergency or disaster has ended. And those decisions might not always be lawful or constitutional. And they are often messy.
It is easy to get caught up in matters, to overlook important considerations, and to seek out answers, in times of heightened uncertainty. Our brains filter information differently during a pandemic. There is little time to sit back and quietly reflect.
Add into that mix a trust deficit between citizens and the state, and any strange move by government becomes ingredients for a conspiracy narrative. Having oversight is also a comfort blanket. Constitutional jurists have read and reread the Disaster Management Act for the past two months.
Regulations and directives issued in terms of the Act were considered and weighed up.
Sources of power scrutinised, sometimes with no clear answer.
The decision to declare a state of disaster is no different.
A state of disaster should only be declared if existing legislation does not adequately provide for the tools to deal with the disaster. Such a declaration remains in force for three months and can be extended for one month at a time by the minister.
Searching through the labyrinth of information forced a return to the Disaster Management Act again this week, with understanding for the difficulty that decision-makers face when they must make, often impossible, decisions.
The Disaster Management Act provides for an integrated and coordinated disaster management approach.
Apart from preventing or reducing the risk of disasters, it also seeks to mitigate the severity of disasters, ensure that we are prepared for emergencies, and establish disaster management centres.
In a sense, it probably fits better under the office of the Presidency. Still, at the moment, it is under the Department of Co-operative governance. But like many laws, what is contained in the DMA is a set of ideals.
Ideals created in a time of no disaster, in the hope that it will provide adequate guidance during times of disaster, when the time for reflection and consultation is a luxury.
That is why the Act allows the Minister, once the state of disaster is declared and after she has consulted with the responsible cabinet members, to make regulations or issue directions or authorise the issuing of directions for reasons listed in the Act.
It is important to note that the Minister should consult (not to reach consensus) and that she authorises the issue of directions. During a state of disaster, she, therefore, does have extensive powers.
These powers are only curtailed by the restrictions that the legislation places on her powers, and her constitutional obligations to be accountable to Parliament. A hidden section 59(4) also requires the regulations to be sent to the National Council of Provinces (which might not have been followed). But it is unclear how this accountability works.
I presume that the various structures established in terms of the Act set up to manage disaster risks and disasters in general should play a role in not only supporting the Minister in doing her job but also in ensuring that a form of democratic decision-making takes place during disasters, by experts and industries who are invited to help.
Like many laws, the underlying problem seems to be with implementation.
For instance, section 4 of the Act makes provision for an Intergovernmental Committee, made up of various ministers and executives on different levels of government, to be established. This committee is accountable to Cabinet with regards to the coordination of disaster management in different spheres of government, and members must advise and make recommendations on issues relating to disaster management.
With the first mention of the National Corona Command Council, it was assumed that the NCCC is this committee by another name. But correspondence from the Presidency suggests that this is not the case.
Which raises the question: where the NCCC fits in this scheme?
In terms of section 5 of the Act, the Minister must establish a National Disaster Management Advisory Forum on different tiers of government, where role-players will consult and coordinate their actions on matters relating to disaster management.
Thus, the Act makes provision for multi-partner involvement in the prevention and management of disasters. This includes the private sector, government parastatals, centres for research and education, NGOs and traditional leaders.
Chapter 3 is devoted to the establishment of a National Disaster Management Centre there “to promote [a] coordinated system of disaster management”. It must monitor the work performed in terms of the Act, and classify disasters (as either national, provincial or local).
As head of the Centre Dr Tau, in line with the legislation, classified Covid-19 as a national disaster on 15 March 2020. This enabled the Minister to declare a national state of disaster in terms of the Act.
But it is unclear what role this Centre plays and should play after such a declaration. The focus seems to have shifted to the NCCC (also known as Cabinet).
The National Joint Operations and Intelligence Structure, or the NatJoints, are “operationalising the directives of the NCCC”.
This means that currently, Cabinet is making decisions in terms of the Disaster Management Act, with the operational arm of the security cluster (who presumably reports to Cabinet) helping with operations.
The committees and centres provided for in the legislation are mostly absent from the public conversation. Many questions stem from this, and we must try and find these answers as a collective, involving the courts where disagreement exist.
Not as adversaries, but as parties seeking solutions in line with our Constitutional democracy.
- Elmien du Plessis is an associate professor of constitutional law at North West University
