Ending state of disaster only the first step in restoring constitutional government

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It seems conceivable that the state of disaster declared under the Disaster Management Act (DMA) in 2020 might soon end.

This would involve the removal of various regulatory restrictions South Africans have been burdened with to cope with the spread of COVID-19. But repealing these restrictions would be only the first step in restoring constitutional government under the Rule of Law. Social and commercial introspection will also be necessary to return to normality.

Having grown up after Apartheid ended, I never imagined I would be writing about a current government needing to stop exempting itself from constitutional limitations on its power. The states of emergency of the 1980s were a thing of the past, I thought, and were not likely to be revived in a country with such bad historical experience with a legally unconstrained government.

Yet, that is precisely what happened in South Africa after COVID-19 burst onto the scene, and South Africans on the whole did not seem to mind.

The South Africa that the Constitution envisions requires that in addition to all unjustified limitations upon South Africans’ freedom, all special COVID-19 structures be immediately abolished, whether they are task forces or Cabinet subcommittees. Special structures for the flu or the cold have never existed other than as research units within public health structures. COVID-19 must become a matter of medicinal inquiry, and stop being a matter of politics and public policy. No South African should suffer any further statutory or regulatory handicap relating to COVID-19.

The COVID-19 regulations issued in terms of the DMA, which owe their validity to the state of disaster, must be repealed forthwith. But it is important that they not be “replaced” with permanent regulations under other Acts, like the National Health Act, or portfolio-specific laws like the Tourism Act. The entire point behind the drive to end the state of disaster is precisely to bring these regulations to an end, not to simply transfer their enabling authority from the DMA to other pieces of legislation.

These regulations resulted in the entirely predictable looting of up to R14.3-billion in taxpayer money that was meant for COVID-19-related procurement.

Many organisations and thinkers have already started calling for the DMA regulations to be replaced, not simply repealed. We must tread carefully when civil society finds itself on the side of immortalising curbs on individual freedom, rather than agitating against them. Under such circumstances civil society is completely failing in its responsibility as a check-and-balance on government power – not to mention corruption, as the Special Investigating Unit report revealed – in a constitutional state.
The aforementioned politicisation of COVID-19, however, has created a situation where simply ending the state of disaster is insufficient to restore the normality we once took for granted.
There remains a risk, for instance, that strangers standing at the entrances of businesses will continue to insist on spraying unknown liquids onto our hands, even post-disaster. There is also the risk that many will still insist that we continue to recycle our own carbon emissions under masks. Moreover, some might continue to demand that elevators only transport a maximum of two people at a time, or that public transport vehicles not fill their seats.
To those who continue to live in debilitating fear of COVID-19, all of this seems eminently reasonable. To most, however, I fear this is anything but normal and is increasingly unacceptable.
South Africa has always experienced a disconnect between compliance officers at businesses and academics at universities on the one hand, and ordinary people spread all around the country on the other. The latter group, as a general rule, has no interest in continuing with the COVID-19 theatre. Where they – we – find a gap, we take our masks off, we try to skip having our hands sprayed with unknown liquids, and we friendily invite more than two people onto elevators.
The former group, unfortunately, thinks that their directives are reasonable, complied with, and not at all burdensome. They must realise the error in their thinking sooner rather than later.
We ought not make light of COVID-19. It led to the deaths of many loved ones, with others living with permanent side-effects to the disease. But many have pointed out from the start that we cannot allow the response to COVID-19 to rival or even be worse than the disease itself. We must see COVID-19 as a health problem, not a political problem, and as such must be dealt with between doctors and patients, not between governments and subjects. In this respect we have failed. Whereas COVID-19 was, and to a much lesser degree remains, a serious disease, the response to it was part overzealous tyranny, and part circuslike theatre.
The constitutional state – the Rechtsstaat, meant precisely to forestall tyranny – will need some tender loving care after the circus has left town. Civil society will need to rediscover itself, not as an enabler of government excess, but as a limitation upon it. Government must – but this is almost unthinkably unlikely – rediscover itself as a protector of individual rights, not their chief violator. Businesses must rediscover themselves as profit-driven entities that serve the economic needs and desires of the community, not enforcers of political diktats.
South Africa can never become a socially and economically healthy society before the constitutional state comes into its full being. Here is hoping that the response to COVID-19 represented a temporary setback in this process, and not a permanent defeat.
Martin van Staden is a member of the Executive Committee and Rule of Law Board of Advisors of the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. Visit martinvanstaden.com.

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