OPINION | Covid-19: The more drastic the measures will need to become, the more our rights will be curtailed

A member of the South African Defence Force talks to a man taking his dog for a walk. (Gallo Images, Nardus Engelbrecht)
A member of the South African Defence Force talks to a man taking his dog for a walk. (Gallo Images, Nardus Engelbrecht)

Declaring a state of emergency signals an exceptional situation. We are condoning the use of extensive executive powers, within the confines of the Constitution, to contain and address the situation, writes Elmien du Plessis.

Democracies are not quick to respond to a new crisis because of the nature of decision-making in a democracy.

The way we make decisions now, as much as the decisions themselves, will have a long-lasting impact on the future.   

This decision-making will happen at a relentless speed, and any foreseeable outcome remains a tentative guess based on temporary findings from experts.

And while experts can inform the decisions, the decisions themselves will still be made by politicians, not by the experts (who themselves sometimes disagree).  

I, therefore, have respect and understanding tentativeness of any decision, and the possibility of mistakes creeping in. Many of our decision-makers the past few weeks have shown remarkable leadership.

A crisis will always be an opportunity for leaders to unveil themselves.  

It also lays bare the power and the politics of decision-making. 

It is therefore essential to ask questions about our democratic intuition and the process of law-making power during times of crisis.

For one, it shows how we as a country are instinctively programmed to deal with situations, which should catapult us into reflecting on whether this is the path we choose for the future.

Picking our way forward should not only focus on the immediate crisis. Still, it should ideally embody the work we foresee for the future, once the worst of the crisis is over.  

But this crisis will continue for a while. It will come and go in cycles. The 21 days is just a start.

In South Africa, the lockdown will prove exceedingly difficult to enforce, and the cost of the social distancing will disproportionally be carried by the poor.

This crisis should be managed by a process where the executive is empowered to institute quick measures, however drastic, based on sound, tentative, research.  

But this should not be an unbridled power.  

Up to date, the executive has been given extensive powers in terms of the Disaster Management Act to pass regulations in terms of section 27. 

My colleague Pierre de Vos wrote extensively about this that need not be repeated here.  

My focus is more on the way that decisions are made in terms of the Act.

It is not unknown for legislation to delegate powers of law-making to a minister, which enables the minister to make regulations within the limits that the Act prescribes. 

The Act provides for coordinated management of disasters between departments and different spheres of government.

The Act focuses on the operational side of disaster management. Disasters that are typically localised and temporary. 

But Covid-19 is different.

It is more contagious, it spreads fast, and more people need hospitalisation.

This will place a heavy burden on our already burdened health system. Since it is so dependent on us as humans to spread and survive, isolation is, therefore, the one way to stop it.  

The decision to order isolation and lockdown, therefore, makes sense, even if it means a temporary infringement of people's rights of movement and trade.

This must always be a careful balancing act and be justifiable in terms of the Constitution.  

While the first set of regulations, with less drastic measures, is probably justifiable within the purpose and the framework of the Disaster Management Act, the question is if the second set of regulations are still adhering to the founding provisions of our Constitution of a multi-party system of democratic government.  

Even in a crisis, decisions should be made in a way that is as democratic as possible, with deference to the unique situation. The government is still expected to be accountable, responsive and open.  

The more drastic the measures will need to become, the more our rights will be curtailed.

Decision making that relies solely on the executive to make regulations within the confines of the Act, without democratic accountability other than by going to court, will lay down a new normal that will cost our democratic project dearly down the line. 

It matters how decisions are made. 

The Constitution provides that a proclamation by the President can declare a state of emergency. This proclamation will be valid for 21 days, and will enable the executive to make regulations to "restore peace and order".  

This proclamation and the regulations must "be laid upon the Table in Parliament", which enable the National Assembly to make recommendations about the measures taken.

Any extension of time must go through the National Assembly. 

Rights may only be limited to the extent that the emergency requires it. The powers of the Courts are set out clearly. There is a clear indication of which rights may not be derogated (taken away).  

Declaring a state of emergency signals an exceptional situation. We are condoning the use of extensive executive powers, within the confines of the Constitution, to contain and address the situation.

And this is more democratic, because the roles of the courts are clearly defined and guaranteed, and the legislature has oversight and input roles.  

We are in this together. 

We might not see the end of this, but there will be an end.

We will be different people, and we would have grown in unimagined ways in a short space of time.

Most of us will outlive this. But we will be alive in a world that changed in a short period.  

It is important how that change takes place.  

- Elmien du Plessis is an Associate Professor of Constitutional Law at the North West University

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