As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In response to widespread protest, looting, destruction of property, sabotage, and a significant loss of life, in parts of KwaZulu-Natal and Gauteng, some fearful citizens are demanding that President Cyril Ramaphosa declare a state of emergency to allow the government to deal more effectively with the chaos. While such a declaration may be warranted in circumscribed circumstances, it is an extreme and potentially dangerous path to follow. Moreover, it may not be the magic bullet some citizens believe it to be.
Some of us who lived through consecutive states of emergency during the last decade of the apartheid regime – with its detentions without trial, torture, censorship, hit-squad killings, and other human rights abuses – remain extremely reluctant to endorse a declaration of a state of emergency by the democratically elected government.
During a state of emergency, the President can issue draconian regulations, including regulations that authorize detention without trial, various forms of censorship, and the severe curtailment of many other rights. In the wrong hands, such powers will be abused, not only against insurrectionists and looters, but also against others whose actions displease the “security forces” and their political principles.
Having said this, let me answer some questions about the conditions under which the declaration of a state of emergency would be constitutionally permissible, and what the consequences of this may be.
Section 37(1) of the Constitution allows for a declaration of a state of emergency, but only when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency” and when “the declaration is necessary to restore peace and order”. Section 37(3)(a) of the Constitution allows any competent court to test the constitutionality of a declaration of a state of emergency, by asking whether – objectively speaking – the life of the nation is truly threatened and whether the declaration is in fact necessary to restore peace and order.
This is an exceptionally high threshold to meet. An armed insurrection, an attempted coup d’état, or some other catastrophic event that endangers the continued functioning of the democratic state might in some circumstances warrant such a declaration, but only if there are no other ways to deal effectively with the threat.
In terms of section 1(a) of the State of Emergency Act of 1997 a state of emergency can be declared for the entire Republic or for specific areas only. In either case, such a declaration will only be valid for 21 days, unless the National Assembly resolves to extend the declaration. Section 37(2)(b) of the Constitution does, however, provide that:
The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
Section 2(1)(a) of the State of Emergency Act makes clear that a declaration of a state of emergency would empower the President to make regulations “as are necessary or expedient to restore peace and order” as well as “to deal with any circumstances which have arisen or are likely to arise as a result of the state of emergency”.Section 2(2) of the Act further allows such regulations to empower other to make “rules and bylaws” to deal with the emergency.
This means, in effect, that the President would acquire the power to deal with the emergency by decree. Although all non-emergency related matters would continue to be dealt with in accordance with the ordinary procedures prescribed by the Constitution, it would bestow sweeping powers on the President and – if the regulations provide for this – on the leadership of the military and the police to take actions to deal with the emergency.
Section 3(2)(a) of the State of the Emergency Act does, however, require such regulations to be tabled in the National Assembly and empowers the National Assembly to “disapprove of any such regulation, order, rule or bylaw”. Presumably such disapproval will nullify the specific regulations.
To understand what this means one must turn to section 37(4) and (5) of the Constitution which makes clear that such emergency regulations limit or suspend most of the rights guaranteed in the Bill of Rights if this “is strictly required by the emergency” and “is consistent with the Republic’s obligations under international law applicable to states of emergency”.
This means, for example, that regulations could be promulgated that shut down the internet or social media websites, or impose other forms of censorship (including a ban on quoting specific individuals), that ban all gatherings or political meetings, that allow for the detention without trial of anyone suspected of involvement in the insurrection or protest (although section 37(6) impose some safeguards in this regard), and that prohibit access to specified information held by the state.
Section 37(5) of the Constitution does, however, prohibit derogation of a specific set of rights, including the right against unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language, the right to dignity and the right to life.
While the courts would retain the power to test whether the limitation or suspension of some rights are strictly required by the emergency, and would be able to invalidate regulations that do not, it would still allow for the imposition of drastic, even draconian, measures required to deal with the emergency. All this suggests that states of emergencies should really only ever be declared in the most extreme situations.
Even if one accepts that the prescribed conditions for the declaration of a state of emergency are present, it might not be wise to declare one.
A declaration of a state of emergency will not magically transform the South African Police Service or the military into efficient, well-organised, disciplined and effective bodies capable of ending the chaos and looting. Part of the current problem is that the “security forces” are unable or unwilling to bring things under control. They are an incapable extension of an incapable state. Giving them more powers will not change this.
However, what it might well do, is to embolden police officers and soldiers to use brute force when this is not required or permitted, which may lead to the terrorisation of members of the public, whether they are innocent bystanders or participants in the mayhem. We all know what happened when soldiers were let loose on the public during the first lockdown; but a state of emergency is likely to lead to far worse abuses than those we witnessed last year.
Such a declaration also runs the risk of further eroding the authority of the state and of the current government and of fomenting more dissatisfaction and resistance. As some of the looting and protest action are linked to hunger, poverty, and racialized inequality, and to a deep dissatisfaction with the kleptocratic behaviour of members of the ANC government and its allies, a medium-term strategy to deal with discontent requires fundamental changes in government policies and in the behaviour of political and economic elites. Allowing incompetent and ill-disciplined police officers and soldiers to terrorize the population to restore “order” will not magically change any of this.
There may come a time when there will be no other option left but to declare a state of emergency, but when that time comes, I am not confident that the declaration would do much good either. Hopefully I am wrong, but I do fear that the declaration of a state of emergency – if it comes – will be no more than an admission of complete failure by our government.BACK TO TOP