By the FW de Klerk Foundation

In its latest Human Rights Report Card (for 2020 2021), the FW de Klerk Foundation identified any continuation of the severe and arbitrary restrictions of a wide range of basic rights imposed under the Disaster Management Act as one of the greatest threats to human rights in South Africa.

We pointed out that, during the COVID-19 crisis, “the government’s actions and regulations under the Disaster Management Act circumvented the foundational values of the rule of law and democratic governance by effectively nullifying the authority and oversight role of parliament – and by making provision for the indefinite and arbitrary extension of the state of disaster without any parliamentary approval. Regulations promulgated under the State of Disaster severely limited fundamental rights and freedoms – including the security of the person, religion, assembly, movement, trade, occupation and profession and education.

Now, in his State of the Nation speech on 9 February, President Ramaphosa has announced the imposition of a new national state of disaster (NSD) – this time to deal with the energy crisis arising from ESKOM’s inability to generate sufficient electricity for the country.

There is a deep irony in this. The energy crisis is not a natural disaster – such as a flood, an earthquake or a pandemic. It has been created solely by the government itself – which is ultimately responsible for the mismanagement of Eskom. This raises the absurd proposition that if government policies and decisions result in a disaster, the government should have the right to assume for itself and for as long as it wants whatever powers it might think necessary to clean up the mess that it, itself, has made.

In terms of the very loosely drafted 2002 Disaster Management Act, the responsible Minister may declare a national state of disaster if existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster or (in a very vaguely worded provision) if other special circumstances warrant the declaration of a national state of disaster.

The definition of disaster is exceptionally broad and can include a progressive or sudden, widespread or localised, natural or human-caused occurrence that causes or threatens to causedeath, injury or disease; damage to property, infrastructure or the environment; or, disruption of the life of a community” – provided only that the occurrence is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.

Once the state of disaster has been declared, the Minister may issue regulations that affect a wide range of fundamental rights, provided only that they are deemed to be necessary to assist, protect or provide relief to the public; protect property; prevent or combat disruption; or deal with the destructive and other effects of the disaster.

The national state of disaster lasts for three months but may be renewed arbitrarily by the Minister for one month at a time indefinitely.

There is absolutely no provision for parliamentary oversight or any limitation on regulations that might affect fundamental human rights. The Act is irreconcilable with the founding provisions of the Constitution and should be challenged in our highest court if it is ever invoked again.

By contrast, a state of emergency – which is supposed to be the greatest limitation of human rights permitted by the Constitution may be declared by parliament only when:

the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

the declaration is necessary to restore peace and order (emphasis added).

A state of emergency lasts for only 21 days and may be extended – only by the National Assembly by majority vote for a period of three months. Any additional extensions must be approved by 60% of the members of the National Assembly. There are strict limitations on the rights that may be limited under a state of emergency and the courts have an explicit duty to decide on the validity of states of emergency, their extension or any legislation they might involve.

Critical as the energy crisis may be, it is clear that it can be addressed by powers already enjoyed by the government.

Why then the need for an NSD?

The answer may lie in a draft document produced by COGTA that was released by the Democratic Alliance in July 2020 which described how an NSD might be used to achieve goals (the economic transformation of South Africa) beyond its ostensible purpose (the combatting of the COVID-19 pandemic).

The COGTA paper observed that one should “Never waste a good crisis. During this time, we can harness the urgency of our predicament to address the most persistent structural economic inequities that have existed for too long in post-Apartheid South Africa.” It added that “Our economic model that existed before the coronavirus shock must now change. The virus has rewritten the rules of global trade and globalisation in general. It has also rewritten rules and the need for domestic production.”

COGTA ascribed South Africa’s parlous economic condition before COVID-19, not to state capture and the mismanagement of the economy, but to the legacy of apartheid and our “top-down neo-liberal economic approach, as opposed to a bottom-up, community and entrepreneurial driven approach.”

COGTA believed that South Africa should learn from the Government’s “excellent management of the COVID-19 crisis”. The key to this was the centralisation of decision-making, policy-making and project planning in the Central Command Council. Accordingly, “…we need a centralised

decision-making body, which functions precisely as the Central Command Council does so that all of government is involved”.

The policy directives generated by the proposed super Command Council would be implemented by the District Development Model (DDM) which would become “the primary institutional mechanism through which we will be able to coordinate economic regeneration and social safeguarding mechanisms throughout the country…”

When the ANC’s National Executive Committee met at the end of January, it probably focused on two “national disasters”. The first was the disaster caused by the energy crisis; the second was the disaster confronting the ANC arising from the prospect that, polling at less than 40%, it might lose power at the next national election in 2024.

The disturbing question relates to the impact the new NSD might have on our ability to hold a truly free and fair election.

The real test for a national liberation movement’s commitment to democracy and constitutionalism arises when it is confronted with the possibility of losing power in a democratic election. The declaration of a National State of Disaster – ostensibly to combat the energy crisis – would pose a direct and serious threat – not only to human rights – but also, possibly, to our constitutional democracy.