The President in his message to the nation on 24 May 2020, announced that South Africa is moving to level 3 in the national lockdown. This allows for business, mining, communications and government services to resume on 1 June 2020. The President confirmed that this decision was taken after extensive consultations with various political parties and other stakeholders and that consultations will continue.
For any constitutional scholar and enthusiast, the statement brings with it a feeling of discomfort, indicating that something is not right and does not sit well. The reason being that South Africa is a democracy, based on the principle of separation of powers between the executive, legislature and judiciary. There is also a separation between the three spheres of government: national, provincial and local. The constitution allows these separations with the sole purpose to avoid centralising the governing powers.
However, in terms of the national lockdown, South Africa is governed by the National Command Council (NCC), established in terms of the National Disaster Management Act of 2002. The national government or executive runs the show during the lockdown. The roles of the judiciary and legislatures are limited and provincial and local governments are only consulted in this process. The governing powers are therefore centralised in the NCC.
On 11 March 2020, the World Health Organisation (WHO), recognised Covid-19 as a pandemic. On 23 March 2020, South Africa declared a National State of Disaster and a national lockdown was enforced on the 26 March 2020. The national lockdown, not only limited rights guaranteed in the Bill of Rights, however, some of these rights were also suspended. A right is limited if a restriction is placed on it and a right is suspended if one is deprived of that right. A deprivation would entail not being able to exercise that right. Citizens’ rights to movement, gatherings, education, trade, right to privacy, etc. was suspended.
This resulted in several constitutional court challenges being lodged that may very likely be withdrawn as many of the requests sought in the judgements will be allowed in level three of the national lockdown.
Interestingly, one such application was brought by the Helen Suzman Foundation (HSF). The HSF sought an order forcing Parliament of the Republic of South Africa to open and hold the executive accountable. The HSF claimed and rightly so that, the Constitution intentionally separates the power between the executive and legislature. It further claimed that the National Command Council (NCC), established in terms of the National Disaster Management Act of 2002, has usurped the law-making function of the legislature. In other words, the national lockdown mimics a state of emergency, however, the executive is running a government without any oversight or monitoring by the body constitutionally mandated to do so.
Reflecting on the national lockdown, one should ask questions in assessing the measure. Particularly, why did the executive choose this route and not a state of emergency? The latter would have given parliament an oversight role and a say in how the national lockdown was implemented. Why did it choose to centralise power in the NCC?
The obvious answer is that global statistics show that the Covid-19 pandemic, to date, has confirmed: 5,43 million persons tested positive for the virus; 2,18 million recovered from the virus and 345 000 deaths resulted from the virus. Without a vaccine, these numbers are bound to increase. Many infected with the virus do not display symptoms. The virus also spreads easily and remains alive for hours on outside surfaces. This posed a threat to South Africa’s already fragile health system and therefore there was a need for the government to act swiftly and quickly to implement the national lockdown.
However, once the national lockdown was implemented, Parliament should have played a more significant role in its oversight of the national lockdown. However, the voice of the people was silent and only resumed online meetings around early May. Also, when Parliament meetings were constituted, why did parliament itself not call to be more involved in the national lockdown?
One could ask and speculate, whether there were discussions between the Speaker of the National Assembly, Chairperson to the National Council of Provinces and the President or members of the NCC about parliament’s involvement? Whether parliamentary oversight would have delayed processes? Did the NCC not have any confidence in involving parliament in its processes?
This is the unfortunate consequence of centralising powers and where there is no accountability and transparency… Questions from the public as to how decisions were made and how they could have been made better, will arise.
Perhaps, if there was parliamentary oversight, the family of the late Mr Collins Khosa could have approached Chairperson to the Portfolio Committee on Defence and not seek relief from the High Court. As background, the late Mr Collins Khosa died from blunt force trauma to the head after allegedly being assaulted and tortured by members of the defence force.
The court ordered in favour of the family, including that, the public was entitled to having their fundamental rights upheld and protected during the national lockdown and that members of the South African National Defence Forces (SANDF) implicated, be suspended. The Portfolio Committee on Defence is constitutionally mandated to conduct oversight over the SANDF. After all, parliament, legislatures and municipal councils are mandated by the Constitution to be the voice of the people.
Going forward, citizens would want to hear from the government, particularly, how decisions were made, what information was used, etc. The executive government must, therefore, prepare itself to respond openly and the legislatures must prepare themselves for constructive and robust debates on these issues.
Legislatures must find ways of involving the public in its activities. That way the voice of the people can be heard and answered.