It is no secret that government leaders have access to increased power in light of COVID-19. Constitutional institutions such as parliament, which are supposed to provide oversight, have taken a backseat.
The pandemic is unprecedented as it is not only a health issue, but also a socioeconomic and security threat. But at what cost does 'securing the threat' come?
President Cyril Ramaphosa declared a national state of disaster in terms of the Disaster Management Act (DMA) in March 2020.
Cooperating with interested parties
All three tiers of government – national, provincial, and local – are expected to cooperate with interested parties such as social welfare groups and health experts, in guiding the formulation of interventions and regulations.
Currently, the main body in charge of guidance and comprehensive decision making for cabinet is the National Coronavirus Command Council (NCCC).
As an advisory body, the NCCC does not have any constitutional or legislative authority, and, as clarified by the President's spokesperson, this body works parallel to the National Joint Operational and Intelligence Structure, charged with overseeing and advising on the application of the regulations. This structure, too, does not publicly account – and is not established in terms of any law.
The President appointed Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, to coordinate the implementation of the DMA, and she has the power to issue regulations and directives after consulting the minister whose portfolio is affected by such regulation.
The established processes for public consultation, debate and approval by the National Assembly is not a requirement, although some of the regulations may be equated to formulation of legislation whilst they do not follow the normal legislative process.
Moreover, traditionally, when cabinet and relevant authorities make decisions, oversight is provided for in the constitution under chapter 5 and the Joint Rules of Parliament.
Cabinet has the power to conduct oversight of all organs of state, including those at provincial and local government level. Some of the regulations affect fundamental human rights, e.g., freedom of movement and association.
These regulations include bans to political gatherings and banning free speech, which is in the form of criminalising 'misinformation' related to COVID-19. This has resulted in litigation and mounting civil society pressure on government.
Confusion and mistrust
There is also no clarity on who sits on these bodies and whether decisions are binding. This confusion has been the direct result of the president making statements such as 'the NCCC has decided'. This has essentially created a situation of collectivised responsibility for cabinet.
It should be noted that cabinet should be both individually and collectively accountable. This is emphasised in the constitution. The lack of full accountability not only creates confusion and mistrust, but the public cannot actively pinpoint the errors in governance. This should be seen with the early back-tracking on cigarette bans by both Ramaphosa and Dlamini-Zuma.
Government later made moves in an attempt to create clarity on who sits on the NCCC, but this only started a month after the establishment of this body which now meets three times a week and had not included eight ministers nor the deputy president.
The president has even said that matters discussed are 'secret', to avoid public panic. The ability to effectively interrogate ministers and regulations depends on government being transparent in decision-making.
The lack of oversight by parliament over structures which have not been provided for in the constitution has resulted in the Human Rights Commission and civil groups approaching courts and publicising their grievances, such as condemning the excessive use of force by both the police and military.
The Liberty Fighters Network, for instance, attempted to find out how the government can protect the people without overriding constitutional rights.
Political parties, too, have not had access to the conventional structures of holding government to account, and initiated court cases instead, as demonstrated by the Democratic Alliance case against Dlamini-Zuma to unban hairdressers.
The scope of the disaster
This mounting pressure had finally resulted in the president having a live question-and-answer session with parliament after three months of lockdown and restrictions on civil liberties – the most recent question and answer being in November 2020.
The scope of the disaster is so wide, from the creation of e-learning, relocating the homeless, and increasing social grants, that it required immense collaboration of all government structures.
Existing in a democracy means that citizens have the privilege to demand transparency and accountability from leaders. If government is not held accountable there is no longer rule of law but rather rule by law.
The COVID-19 crisis is a legitimate threat, and in a time of national emergency it is understood that some rights and liberties may take a backseat to contain this threat.
However, the current approach creates a dangerous precedent and can be extended to include other aspects of South African life.
This includes the lack of meaningful engagement regarding strategy or policy with other political parties, cabinet or the public. Or criminalising political gatherings and free speech, which pushes people into the shadows when guiding political discourse and advocacy for the needs of people.
This creates a dilemma where any future 'threat' and actions taken by government as a result, are not subject to scrutiny nor individual and collective responsibility for those enacting these policies. This current system does not guarantee sustainability for South Africa's democracy and the liberties of its people.
This article was first published on BBrief on 15 February 2021.