Frontline Africa Advisory

Covid-19: A Test for SA Constitutional Democracy?

Covid-19: A Test for SA Constitutional Democracy?

Every crisis presents its own opportunities. And so it is with the Coronavirus or Covid-19 which has seen countries institute drastic measures to contain what is now a global pandemic as declared by the World Health Organisation. The measures include travel bans, banning of gatherings of any kind and business closures. Here at home, President Cyril Ramaphosa announced a State of Disaster in terms of the National Disaster Act of 2002.  

This means until 15 June 2020, government is vested with extended powers to deal with the pandemic outside of the normal bureaucratic processes. These powers extend to procurement, the evacuation of people, and the regulation of the movement of persons and goods. In terms of section 27(2)(n) of the Disaster Management Act, government may also take “any other steps that may be necessary to prevent an escalation of the disaster”.

Government has indicated that it may also invoke Section 37 of the Constitution which provides for the declaration of a State of Emergency should the situation worsen. If this comes to pass, it will be a first for the country since the advent of democracy in 1994. It will confer on the President wide-ranging powers over and above those usually vested in him for a period not exceeding three months.

There has been much talk about what a State of Emergency would mean for South Africa. There is, overall, a general apprehension about a State of Emergency given South Africa’s traumatic experiences under successive Apartheid governments that invoked States of Emergency for purposes of repression and human rights abuses. However, there is an acceptance that we are in are extra-ordinary times and extra-ordinary measures may be necessary given the poor state of our public healthcare.

Given the many changes that have taken place in our body politic and the many checks and balances that are built into the country’s Constitution, is the public’s expressed fear about a State of Emergency well-founded?

For those who had harrowing experiences of Apartheid, the thought of a State of Emergency must be an unsettling one. Our recent political past has ably demonstrated the damage that can be wrought on a body politic when too much power is concentrated in the wrong hands. As such, latent fears about such a State of Emergency being used deviously for political ends may be understandable.  

While the drafters of the Constitution had the best men and women in mind to lead the propagation and promotion of the constitutional values and principles, there is an extent to which they did not foresee the natural fallibility of those entrusted with power. There are many instances that have proven, in fact, that the values engraved in our Constitution do not always find common purpose in the minds and souls of those who have the privilege to occupy the seat of government. Jacob Zuma’s presidency presented an example of what could happen should those with power be left unchecked.

Ramaphosa’s character as a negotiator and consensus builder is well known. Some have pointed to the constrained political space from which he rose to power and within which to manoeuvre. But nobody knows what would happen the day he wakes up and suddenly ‘discovers’ that, in fact, an opportunity delivered on a silver platter by Covid-19 can change his political fortunes on the home ground. Fair enough, the provisions of the State of Emergency Act make it clear that no action, that is inconsistent with section 37 of the Constitution, can be taken. But again, it is possible, and very seldom happens, that various government actions become subject of legal interpretation post facto.

While it may be necessary in our current situation, a State of Emergency carries risks of political manipulation. South Africans dare not take that lightly. In politics nothing is impossible. History is awash with examples of how what was considered unthinkable became a reality within a matter of hours.

One of the gifts that former President Jacob Zuma presented to South Africa is that, through a number of his mistakes or not so-well considered decisions, he tested the strength of our constitutional democracy. Thanks to him, and those who favourably interpreted the law – the Judiciary- we now know that the President of the Republic cannot, for example, make decisions on fictitious or irrational grounds. This came up sharply after the so-called midnight Cabinet reshuffle of March 2017 which saw the removal of Finance Minister and his deputy.

When Covid-19 has been contained and the State of Emergency lifted (if at all it gets declared) the public shall have gotten a glimpse of what should, and could conceivably, be reviewed in the State of Emergency’s constitutional provisions and in the Act, to give practical effect to the system of checks and balances that is so central to the exercise of power in a constitutional democracy. 

South Africa has a strong and independent judiciary, vibrant civil society, vocal media, etc; all of which are viewed as defenders of the country’s constitutional democracy. It is through their relentless efforts that massive corruption and state capture have been exposed in the public sector. Society’s hope, always, has been that these sectors will continue to play their part in protecting and advancing our constitutionalism.

Written by Zamokwakhe Somhlaba

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