Government is flouting the Rule of Law!

Last week, government addressed the public and announced last-minute changes to the Level 4 lockdown regulations. Whilst these changes angered most and pleased some, the overriding problem with them is the inherent arbitrariness.

The Rule of Law is not a concept that is cast in stone; it does not have a set definition. But it does have certain essential aspects that are vital to maintaining its core nature. For one, government should not base the laws and regulations that they promulgate on arbitrary considerations, and the laws and regulations themselves should not entail arbitrary provisions. Another imperative is that policies should be clear and easy to understand.

Citizens are now allowed to walk, jog, and cycle between the hours of 6am and 9am, but only within a 5km radius of their home. Whilst many were probably relieved when first hearing that government is finally allowing them to exercise outside the boundaries of their place of residence, the regulation does not stand up to scrutiny in the face of the Rule of Law.

On what basis were the hours decided? Why a 5km radius and not 4km or 6km? These questions might come across as semantics, but when it comes to holding government to account, it is the small details that matter, because that is where the devil usually resides. The provisions are entirely arbitrary and not consonant with the Rule of Law.

Most worrying is government suddenly backtracking on its commitment to allow cigarette sales. Whilst the policy itself, when viewed in a vacuum, might be clear as day, the problem is the confusion it creates as to what framework government uses to decide which lockdown policies to promulgate.

Even more worrying is that Minister Nkosazana Dhlamini-Zuma openly defied President Cyril Ramaphosa's commitment to lift the ban. One cannot help but wonder what motivated this flagrant abuse of power and whether the minister, in some way, was acting in her own self-interest. There are sure to be parties that must be revelling in the news.

Black market
History has taught us a valuable lesson: banning things doesn't work. What it does do is create black markets where disputes cannot be resolved in a legal manner.

It happened when the sale of alcohol was prohibited in the United States in the 1920s and led to the rise of mobsters such as Al Capone. It is the underlying cause of rampant drug-related gang violence on the Cape Flats. It is why certain countries such as Portugal opted for drug liberalisation policies that directly led to lower levels of drug use and overdoses, as well as lower levels of drug-related violence.

The entire lockdown paradigm as it relates to the effective banning of certain livelihoods is also flawed because the foundation of the decisions is arbitrary.

There is no objective measure as to which goods and services, and, by extension, which jobs are 'essential'. Two considerations underly this view: the fact that all value is subjective, and all jobs are therefore deemed essential by those who rely on them to put food on the table.

Put simply, all economic activity is essential to someone. The distinction itself is entirely arbitrary and undermines the legal legitimacy of the bulk of the lockdown regulations.

Silver lining?
There is, however, a silver lining to government undermining the Rule of Law: hopefully it finally convinces apologists for the government’s actions that they were, in fact, dead wrong in their assumptions that government acts in their best interests.

We have seen many people who are trying to point out the threats to civil liberties being subjected to gaslighting by those who are either blind to it or simply do not care. From accusing people of wanting the sick to die en masse, to associating them with the far-right, it has truly become worrying just how much Stockholm Syndrome has taken hold. 

Hopefully, with the ban on cigarette sales being re-enforced, this will now come to an end and the bulk of citizens will realise that we cannot afford to drop our guard when it comes to holding government accountable and making sure it abides by the Rule of Law, no matter the situation.

We cannot afford to create exceptions for the state in terms of the mechanisms used to hold it to account and, more importantly, limit its powers to protect our civil liberties.

This article was first published on BusinessBrief on 08 May 2020
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