Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 May 2020

Are we fighting about who will get the best sun chairs on the deck of the Titanic while the iceberg is looming in the distance?

Because of the Covid-19 crisis, the government currently wields enormous power with limited checks in place. As is always the case in a democracy, citizens have a pivotal role to play during the crisis to keep the government honest and to check the autocratic tendencies of some members of the executive. But are we doing our bit?

Announcing the end of the hard lockdown on Sunday, President Cyril Ramaphosa warned “that the coronavirus pandemic in South Africa is going to get much worse before it gets better” (which means thousands of people will die from the virus in the coming months), and acknowledged that while the lockdown helped to slow the spread of Covid-19, the state has been unable to utilise testing as effectively as it could have to help suppress the spread of the virus. Ramaphosa specifically acknowledged that:

we have experienced several challenges, including a shortage of diagnostic medical supplies as a result of the great demand for these supplies across the world. This has contributed to lengthy turnaround times for coronavirus testing, which in turn has had an impact on the effectiveness of our programmes.

There has been very little public discussion so far about whether this failure could have been prevented or mitigated, what this means for ongoing efforts to suppress the spread of coronavirus, and to what extent it will impact on the number of people who eventually die of the virus. So many questions. Why does it take up to 10 days for a person tested in the public health system to get his or her results and what is being done to address this? Has the government decided that it is impossible to fix this problem, and if so, why?

The government has rightly faced sustained criticism for the violent and authoritarian manner in which its security forces had tried to impose the lockdown on society, with often disastrous results. However, there has not been nearly enough discussion and debate about alternative ways that could have been used to persuade the population to adhere to lockdown regulations to the extent that their circumstances allowed for it.

On Sunday President Ramaphosa also, correctly, warned that “the risk of a massive increase in infections is now greater than it has been since the start of the outbreak in our country” before quoting Nelson Mandela as saying “it is now in your hands.”

While the Economic Freedom Fighters (EFF) – in its usual baroque style – jumped on these words to argue that the government has given up on black people and that it “does not have a plan that will deal with Covid-19”, there has been surprisingly little debate about the wisdom of the government’s overall strategy to suppress the spread of coronavirus. When an expert claimed two weeks ago that, for whatever reasons, the state may be reverting to a strategy “to convert ice rinks to morgues and to prepare mass grave sites”, there was little debate about this.

Instead, mainstream debate has largely (but, of course, not exclusively) focused on side-issues like the irrational ban on the sale of cigarettes, the bizarre regulations on the sale of undergarments, and the lifting of the ban on the sale of liquor. Elites seem to be fighting about who will get the best sun chairs on the deck of the Titanic, while the poor are hidden out of sight in the third-class section below deck, and the iceberg is looming in the distance.

In all of this, there is only one thing I am reasonably certain of, namely that in making the decision to end the hard lockdown, the government was faced with an impossible choice, as it only had bad and even worse options to choose from.

What I am not certain about is whether this was inevitable or whether it was because of bad policy choices (always easier to identify in hindsight), the inability of a weakened state to implement good policies, or a host of other factors. While widespread indifference in the overall strategy of the government to slow and ultimately suppress the spread of Covid-19 is bad for democracy (more about that later), uncertainty may be an asset. As Dr Max Price, former Vice Chancellor of UCT, recently wrote in a slightly different context:

Less hubris, more humility, less certainty that one is right and that those with different interpretations are wrong, will be more helpful in ensuring that the scientific conversations continue and progressively converge on a common understanding of the epidemic and what we can do to mitigate it.

I suspect part of the problem is the manner in which the government managed the lockdown. The autocratic approach displayed by some cabinet ministers and senior government officials (there have been some laudable exceptions) meant that much time was spent on instructing the public on what was prohibited and what not and on attempts to threaten and skop, skiet en donner us into compliance.

Some cabinet ministers turned an unprecedented and seemingly close to impossible to manage public health and economic crisis into a matter of law and order. Instead of treating people as partners, promoting social solidarity, and mobilising communities to take action to change behaviour, the securocrats decided the best way to prevent the spread of the virus is to shout at us, arrest us or shoot us into compliance.

Despite sporadic attempts to do so, far too little time was spent on explaining – in detail and with reference to the available evidence and expert advice, and an admission on what was and was not known or yet knowable – the overall strategy of the government to slow down the spread of the virus and ultimately to suppress it. We were told more about how the government was aiming to slow the spread (which would still lead to the spread of the virus but at a slower pace), but less about the strategy to suppress the virus (which would lead to fewer and fewer confirmed cases of Covid-19 over time).

Whether the latter is true or not, I would argue that the autocratic tendencies of some cabinet ministers and senior government officials, the manner in which the vast law-making powers bestowed on the executive by the Disaster Management Act has been used, the tepid response of the democratically elected Parliament to this unprecedented shift of power to the executive, and the misdirected anger of the public, pose a risk to our democracy.

The Disaster Management Act (which was not written with a crisis like the one we are living through in mind) enables the government to act speedily to deal with the coronavirus crisis. Given the speed with which the virus spreads, it would have been impossible for the executive to deal with the crisis without bypassing the legislature and many of the checks and balances imposed by the Constitution on the exercise of executive power. The Act in effect allows the executive to bypass the legislature and to evade many of the formal checks and balances that would normally inhibit the abuse of power by the executive.

We therefore find ourselves in an informal, light, version of a state of emergency. Only an informal and light version because – unlike in a formal state of emergency – the rights in the Bill of Rights all remain in place and the judiciary retains its power to review and set aside irrational regulation and to invalidate regulations that unjustifiably limit any of the rights in the Bill of Rights. But this takes time and in a fast-moving environment like the one we find ourselves in, it may be a waste of time and money to challenge individual regulations that may well be amended by the time the court decides the matter.

Whether one views this as akin to a state of emergency or not, it is not in dispute that the extension of executive power and the weakening of checks and balances has had an impact on the quality of the democracy – at least in the short term. This is exacerbated when elements within the executive display autocratic tendencies and bristle at any criticism or questioning of the measures taken. But of greater concern is that the shift of power to the executive and the weakening of checks and balances will not be undone when the emergency ends.

In an article published earlier this year by Anna Lührmann and Bryan Rooney entitled “Autocratization by Decree:States of Emergency and Democratic Decline” (which one of my students alerted me to) the authors, who studied all countries in which states of emergency have been declared between 1974 and 2016, concluded that “democracies are 75 percent more likely to erode under a state of emergency than without”. They define a state of emergency broadly as “the mechanism by which, in times of imminent danger, the government is empowered to take actions beyond its standard procedures”.

Will South Africa’s democracy similarly be diminished in the aftermath of the crisis or will the executive relearn to govern within the constraints imposed by the Constitution? President Ramaphosa’s speeches suggest there is nothing to worry about and that we will be part of the 25% of countries in which democracy is not eroded. Unfortunately, the words and actions of some of his ministers suggest that there might be a potential problem.

Ultimately, citizens have an important role to play to keep the government honest and to check the autocratic tendencies of some members of the executive. Which is why I remain baffled that not more citizens are clamouring for more information about our government’s overall strategy to suppress coronavirus, and demanding accountability from the executive, not only for the silly (but ultimately inconsequential) regulations on cigarettes and booze, but also for its plans on ultimately suppressing the virus and saving lives.

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