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Police Minister Bheki Cele takes part in a joint law enforcement operation in Krugersdorp on the first day of lockdown Level 4. Cele has proven an unpopular figure with many South Africans during the lockdown. (News24, Azarrah Karrim)
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Because stubbornness is mistaken for strategy in some quarters, chances are that government would aim to defend the cases in court instead of opting to engage with groups and find a workable solution, writes Ralph Mathekga.
President Cyril Ramaphosa's administration is facing the criticism of executive indulgence in its handling of the novel coronavirus outbreak in South Africa.
Having started by showing a firm hand that earned him support across the society and also across party lines, Ramaphosa's SWAT Team approach in managing the Covid-19 pandemic has quickly reversed the public support and replaced it with mistrust, fear, and a general lack of proper engagements between government and stakeholders.
Just over five weeks since the publicly supported lockdown was implemented, Ramaphosa and his Lockdown Cabinet are battling public dissent - both in terms of belligerent behaviour by some citizens towards lockdown restrictions on the one hand, and irritations by various groups on the other, who seek to mount court challenges against what they consider drastic measures by government as part of the lockdown regime.
The question that should worry South Africans is where does it all end?
Will the lockdown survive and in what form?
Will government change its course and become more engaging with stakeholders in society in managing the lockdown going forward, avoiding potentially embarrassing court showdowns?
To avoid confrontations with groups that are set to challenge some of the lockdown regulations, government should de-escalate the current situation and consider the reality of what is achievable and what is not achievable under the lockdown.
The Corona Cabinet that is responsible for managing government’s response to the coronavirus pandemic is not the team that is made up of individuals who would be interested in de-escalating the existing tensions surrounding the lockdown.
This will lead to one end: multiple court actions against some of the rules and regulations adopted under the lockdown.
Government's unilateral decision making approach will open a floodgate of court challenges whereby lockdown regulations are questioned.
Before going into the prospects of the court actions against some of the regulations adopted by government under the lockdown, let me explain why I believe the courts would be more than happy to listen to those cases whereby lockdown regulations are challenged.
A few weeks ago, Justice Minister Ronald Lamola is reported to have requested a meeting with Chief Justice Mogoeng Mogoeng to discuss matters relating to the functioning of the courts during the lockdown.
Reports indicate that Chief Justice Mogoeng expressed his reluctance to participate in the meeting because of the Justice Department's earlier decision to adopt a programme on how the courts would operate under lockdown without firstly consulting with the office of the Chief Justice.
In refusing to meet with Lamola on the basis that there might be future constitutional issues in the manner in which government sought to regulate the courts during the lockdown, the Chief Justice was actually warning the executive that our Constitution is still in effect and the executive branch of Cabinet is still bound to act in accordance with the Constitution.
If the Chief Justice’s unconfirmed letter to Lamola points to possible constitutional questions in relation to some of the decisions made by government in managing the pandemic, this implies that the court would not be unsympathetic to parties who approaches the bench with such questions.
Poor management of the lockdown in the townships and reported incidents of heavy handedness by the security forces leaves government on the defensive when it comes to the legality of the conduct of the state.
The manner in which the lockdown has negatively impacted the poor and the vulnerable and how allegations of corruption and outright theft have dominated the food distribution process during the lockdown further paints government as incapable of getting the basics correct and yet more willing to extend a heavy hand against the vulnerable during desperate times such as a lockdown.
In managing the lockdown thus far, government has not covered itself in glory.
The United Nations Commission on Human Rights has expressed its concern about the heavy handedness of the security forces during the lockdown.
There is no way of explaining why the poor and vulnerable in society should be met with excessive force by security forces when they violate lockdown rules, particularly when there is a clear socio-economic explanation as to why some would find it difficult to strictly adhere to the regulations.
President Ramaphosa's administration is not in a position to face off with angry groups in court. Government started well and enjoyed credibility in the first couple of weeks of the lockdown.
However, government has committed some mistakes that have undermined its credibility in managing the lockdown.
Among mistakes that have been committed are the use of excessive force in some instances, violation and disregard of lockdown rules by some members of Cabinet who have become undesirable characters.
Government criteria regarding what amounts to essential goods that can be attained in the lockdown is also questionable.
There are some decisions that have been adopted and do not make sense as to which purpose they serve.
All this has pushed government to the corner, and the best option for government is to stop fighting hard and consider engaging with stakeholders and groups.
There are different groups that seek to challenge different aspects of the lockdown regulations ranging from religious leaders; the tobacco lobby; alcohol lobby; the grilled chicken lobby; etc.
Further, a group of lawyers have asked president Ramaphosa to explain the constitutional basis of the coronavirus command council, particularly where the council fits in in the broader chain of accountability in a constitutional democracy.
The last thing government wants to do is to unite the tobacco and alcohol lobby with the human rights groups against the lockdown regime.
It would rather be strategic for government to try to engage in good faith before heading to court to defend its decisions.
But because stubbornness is mistaken for strategy in some quarters, chances are that government would aim to defend the cases in court instead of opting to engage with groups and find a workable solution.
The problem with this approach is that if the government loses in court on some of the disputes relating to lockdown, that would further undermine government's moral legitimacy to manage the lockdown.
It is too risky to implement lockdown rules through court orders instead of engaging with stakeholders and seeking compromise.
Whenever government wins against its citizens in court it loses some of its people from its campaign to pursue the common good.
This is not to say that government should not take a position and defend its policies in court.
The greater risk faced in the lockdown in South Africa or elsewhere is loss of trust between the government, key stakeholders, and broader citizenry.
This relationship cannot be strengthened through litigation, but through a dialogue among stakeholders. One court victory against lockdown regulation could spell more trouble for government.
This is a chance that government should avoid taking.
- Dr Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa's Turn.
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