Thuli Madonsela: Who can blame the people for ignoring restrictions when the law is gratuitously unfair?

Two women were arrested by police for selling cakes and snacks on the pavements without a permit during lockdown regulations in Soweto in April.                                                  Picture: Tebogo Letsie
Two women were arrested by police for selling cakes and snacks on the pavements without a permit during lockdown regulations in Soweto in April. Picture: Tebogo Letsie

VOICES


What if we changed gear on the Covid-19 coronavirus?

What if we conceded the futility and counter-productivity of some of the virus containment strategies to date?

What if our strategy shifted from a policing-centric to a behaviour-modification paradigm?

What if we invested in ways to get most people to opt in regarding the Covid-19 containment quest and transcended the government as the saviour paradigm?

What if we shifted our strategy to leadership as opposed to command and control? Would we do better in our Covid-19 situation?

The law is a powerful instrument for behaviour modification and social change. But the law has its own limits.

Firstly, to be obeyed voluntarily, the law must not only be just and fair, it must be seen and felt to be so.

The law must also, as Antoine de Saint-Exupéry advises, not be unnecessarily difficult to obey.

Our Covid-19 containment strategy has hitherto been anchored in law as the key instrument for behaviour modification and social change.

Key to the strategy, as emerging in the barrage of lawfare pushbacks by civil society and political parties, is containment of transmission and limiting demand on health services.

What also emerges is that care has been taken not to squeeze the economy too tightly or irrecoverably in the process.

But what about family and related human rights? Government has been silent on this front while the regulations seem oblivious.

The first strategy principally consists of regulatory measures aimed at physical distancing – incidentally, called social distancing.

In a twisted way, the impact has become social distancing primarily on the family front, romantic relations and general social intercourse for law-abiding citizens.

According to Disaster Management regulation 33, you may only leave your place to:
  • Perform a service as permitted under alert level 4;
  • Travel to and from work;
  • Buy goods or obtain services as permitted under level 3;
  • Move children as allowed (regulation 34 restricts this to parents holding court orders);
  • Exercise between 6am and 6pm;
  • Attend a place of work in the same metro or district;
  • Attend a school or learning institution where allowed;
  • Travel for leisure purposes as allowed under level 3.

People are not taking some of the undue social disruption lying down.

Many are conducting their essential social intercourse the way they did before the Covid-19 regulations.

Long before July 1, many were having their hair done, as evident in fresh braids.

Many lovers visit each other and the same applies to relatives, including across districts, metros and provinces.

Regarding funerals, there is no shortage of a stream of relatives coming to mourn daily from the date of that dreaded phone call.

Even the traditional sitting on the mattress has, apparently, not been disrupted by regulation 33 restrictions.

Many are ignoring the bizarre restrictions on degrees of affinity for permission to attend funerals.

Who can blame the people? What are they to do when the law is gratuitously unfair and oblivious to ubuntu?

The sad thing is that since this is happening “unlawfully” there is no supervision to ensure proper safety protocols are complied with, including physical distancing and wearing masks.

This became apparent to me when bereavement struck home, literally, in the middle of level 3 of the lockdown.

I grew up regarding the deceased as my brother-in-law and his surviving spouse as my sister.

My father became her proxy father when his brother, her father, died when she was a child.

I continue to refer to him as my brother-in-law when I converse in isiZulu or siSwati.

The law tells me that the widow is not my sister but my cousin and that her husband is not my brother-in-law.

If you understand Zulu and Swazi culture, you will know that cousins are your father’s sister’s children.

Dr Tshepo Madlingozi, and your decolonising colleagues, this one is for you to fix.

If you think this is confusing, wait till you navigate the Covid-19 regulations. I still wonder who the Albert Einstein is who decided which relations can attend a funeral.

According to regulation 35, I would only have been permitted to travel from the Western Cape to Gauteng for the funeral if I was related to the deceased as (a) a spouse; (b) a child or grandchild; (c) a biological, adopted, step or foster child; (d) a child-in-law; parent or step-parent; (e) a sibling, whether biological, adopted or step; or (f) a grandparent.

As you may note, there is no room for cousins, sisters or brothers-in-law; husbands and wives burying each other’s parents; and parents-in-law attending funerals on the other side.

From the information I have, none of these prevented relations from as far as Rustenburg from bidding farewell to their loved one.

What if we roped in social workers, psychologists, psychiatrists, traditional knowledge experts and others to help rethink our Covid-19 strategy?
Thuli Madonsela

Why make a law that will be blatantly ignored by most? Will this not engender a culture of lawlessness? Will arrest help? I doubt it.

Over 250 000 ordinary people, mostly Gogo Dlaminis, have been criminalised for Covid-19 regulatory violations.

One that got to me was informal trader Thandi Thabete who was arrested like a common criminal for selling achar to put food on the table in the absence of work and government social relief.

The same treatment was given to my mother, leaving me, as a four-year-old, to look after a newborn baby all alone till relatives arrived.

Chances are this cavalier treatment of family life is due to the paucity of sociopsychological expertise and related insights in the Covid-19 regulations design and drafting teams.

Insider information has left me and my colleagues in Social Justice and Covid-19 Policy and Relief Monitoring Alliance with the distinct impression that the bureaucrats – mostly from the legislation drafting branch of the departments of justice and constitutional development, and cooperative governance and traditional affairs, aided by a health advisory panel – are driving the regulatory thinking.

That we need more systems thinking seems undeniable. A dollop of design thinking would also help.

The shift through systems and design thinking could include:

  • More family-friendly regulatory measures that are aligned with the best interests of the child;
  • A more efficient behaviour modification model anchored in fostering an optimal opt-in paradigm among the people;
  • Better congruence between social and economic relief, what with growing food insecurity, cash flow droughts and business rescue cries; and
  • Leveraging data science to anchor better equality, anti-poverty and business regeneration outcomes as we inch towards the recovery phase.

Government’s gratuitous departure from the inclusive and collaborative dimensions of the Disaster Management Act has hitherto withstood court scrutiny.

But regarding the congruence of the approach with the ideals of democratic governance and the rule of law underpinning our Constitution, the jury is still out.

Read: Covid-19: Constitutional conundrums as lockdown court challenges mount

What if we roped in social workers, psychologists, psychiatrists, traditional knowledge experts and others to help rethink our Covid-19 strategy?

What if we sent the soldiers back to the barracks or to the field to deliver relief? What if police went back to the raging crime war, including on gender-based violence?

What if we redirected resources in adverts that model the post Covid-19 future we want, the behaviour we want, food security, business resilience, peer education and social work to foster resilience?

What if those criminalised for nonviolent Covid-19 crimes had such convictions waived and then enlisted as Covid-19 containment peer educators, while free to pursue work and business opportunities without criminal records?

Wouldn’t this leadership paradigm be more in line with the constitutional imperatives?

Could this turn what increasingly looks like a losing streak back into a winning one?

Madonsela is professor and law faculty trust chair in social justice at Stellenbosch University, founder of the Thuma Foundation and convener of the Social Justice M-Plan

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