The rule of law was undermined and the consequences are showing

05 June 2020
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The importance of the rule of law cannot be overstated.

It lays the foundation for good governance which serves the people who give democratic legitimacy to the government in question.

The Covid-19 coronavirus response by the South African government is not serving the people.

It is undermining citizens' voices, their quality of life, as well as their lives.

Nothing about the response is reasonable. The ends do not justify the means.

The artificially created havoc by the state will prove deadlier and more destructive than the chaos they initially set out to avoid.

In the recent judgment of Judge Hans Fabricius of the Pretoria High Court in the Collins Khosa case, the judge had what seemed to be an enlightening thought similar to a Lockean epiphany on political economy.

"A seemingly irrational regulation seems to be that one can purchase only certain items at a super-market [sic], while not others.

“It makes no sense and it affects economic progress that must go hand in hand with the concerted effect by all, including the citizenry, to contain the virus.

"It should not be the choice of either the public health or the state of the economy. It is a necessity to safeguard both.

"The virus may well be contained - but not defeated until a vaccine is found - but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and, overall, the maintenance of the rule of law?

"The answer in my view is: There is no point," Fabricius said.

But the learned judge's words seem like an epiphany only in a society where the rule of law has all but been forsaken by the government.

Where disproportionate, unreasonable, arbitrary and ambiguous measures have been forced upon citizens by an unaccountable, undemocratic military-style "national command council" - all in the name of the "new normal".

And now, nine weeks into what was supposed to be a three-week lockdown, the evidence is becoming ever clearer that the undermining of the rule of law, that which was regarded as a lesser priority to "saving lives" - a false dichotomy nevertheless - is what will cost lives.

When the lockdown commenced, the warnings were echoed no later than when the first reports of extra-judicial law enforcement by members of the security services emerged.

The warnings weren't simply limited to overreach by the security forces. They extended well beyond the sphere of policing.

Warnings were made that a ruling party that had done everything in its power to showcase its sheer incompetence should not be trusted to manage the crisis effectively and efficiently.

Civil society warned government that condemning poor South Africans to starve while forced to huddle together in a 5m x 5m zink shack lest they risk going out on to the streets to be abused - or even murdered - by overzealous police and even military forces for trying to feed themselves, is not a viable way to keep a virus in check.

Neither in the short term nor the long term. We were told by the very government that is now ignoring experts and attempting to censor them to listen to the experts as they were allegedly doing at the time.

Alas, the government applied its advice selectively from the outset.

When notable academics from the University of the Witwatersrand warned the government that the hard lockdown should be ended almost as soon as it began, the warning fell on deaf ears.

When an actuarial study, conducted by a team of actuaries, a medical doctor, and an economist, and reviewed by mathematicians, showed that the lockdown would lead to more lives lost than saved, the warning fell on deaf ears.

When our top epidemiologists warned that we must get back to normal before the peak hits, their advice fell on deaf ears.

When a vaccinology professor from Wits said that the lockdown has passed its due date, the warning fell on deaf ears.

Yet the president did not bother to address these concerns through something as simple as a Zoom press conference.

Transparency be damned.

One can argue that going to level 3 is effectively returning to "normal", but such an argument is spurious at best.

Level 3 is anything but normal if the rule of law continues to be undermined.

It is the rule of law and its accompanying imperatives that lay the foundation for a normally functioning society where human flourishing occurs.

If the government abided by the rule of law and used it as a framework to balance competing interests in the face of the global pandemic, we would not be stuck with a situation where reports are flooding in of cases of malnutrition at hospitals and citizens being abused by security forces.

The rule of law does not preclude a measured, reasonable and, above all, effective response to a pandemic.

It does the very opposite.

It informs how such a response should look to be effective and not create "collateral damage" - a seriously inhumane term for innocent lives lost.

How? By demanding that the measures implemented be reasonable and proportionate, the implication is that negative externalities should be minimised as far as possible.

This article was first published on City Press on 28 May 2020

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