Eusebius McKaiser: We should stress-test the lockdown

We seem divided as citizens about how much lockdown leeway to grant the state for it to contain the spread of Covid-19 successfully. It doesn’t help that dramatic false dichotomies are set up between various forms of “total lockdown” and “opening up the economy”.

Anyone attempting to inscribe complexity into the public debate might not even be heard because of the airplay that seductively reductive views receive. Yet we should insist on stepping away from the noise, and carefully work through complexities, without fear of being maligned as being cowards unwilling to choose between false options.

We can and should, in my view, broadly support the state’s national lockdown regulations — because they serve a rational, overarching societal purpose — and simultaneously, without being contrarian at every turn, pressure-test the detail of state decisions, against the normative standards of our Constitution. This is an important balance and after weeks of business unusual in our society there are examples that underscore the importance of this balance.

There is no justification for brutality from some members of the South African National Defence Force (SANDF) and the South African Police Service (SAPS). The alleged torture of Collins Khosa that caused his death in Alexandra township, allegedly at the hands of SANDF members, is a case in point. The response from the government has been sheepish at best and one of callous silence at worst.

The singular solemn press commentary from Minister of Defence Nosiviwe Mapisa-Nqakula is not good enough. It lacked the appropriate level of unqualified condemnation of the behaviour of some SANDF members across the country, including in Alexandra. There has also been no detail provided about what shape and form an inquiry into the torture allegations would take.

This is no time for vagueness. When human rights are at stake, nothing less than a detailed response from the state is required to show a sincere commitment to entrenching the rule of law.

An affidavit deposed to the Constitutional Court this week documents the eye-witness testimony of Nomsa Montsha, who describes in tear-inducing detail how her life partner, Collins, had “beer poured on top of his head and on his body”, followed by a “member of the SANDF [holding] his hand behind his back, while [another] choked him.”

She describes how, thereafter, they “slammed him against the cement wall … kicked, slapped and punched him on his face, stomach and ribs … and slammed him against the steel gate”.

Later, while comforting her partner after the SANDF members had left, she was holding his hand as he was lying on their bed, before she noticed that “he was not moving”. The emergency services were dispatched and declared him, sadly, dead upon their arrival.

Shockingly, we as citizens do not have any idea of what operational plans the SANDF and SAPS members are acting under. We are not at war with another state or against human beings. We are responding to a pandemic. This means the state has no reason to be secretive about the patrol protocols given to the SANDF and SAPS.

It is not as if the virus will get the upper hand if we are told what these plans are. And, equally, it is fine and even necessary for citizens to be warned beforehand about what the operational procedures are that they are being subjected to by the soldiers and cops.

The use of the language of war is tempting during this time, but also misdirects us from asking the necessary accountability questions we can fairly insist on as citizens living in a country founded on the principle of constitutional supremacy.

It is absurd and embarrassing that citizens need to launch urgent and direct action in the Constitutional Court to have the SANDF and SAPS directed to develop and publish a code of conduct and operational procedures that regulate the members of the SANDF, SAPS and metro police departments.

It is not good enough to assert that because a state of disaster has been declared that the burden of open and responsive governance, including well-publicised rules about the patrolling of our communities, need not be discharged by the state.

And this is the moral of this example. We signed up for a nascent society in 1994, breaking with the unchecked exercise of state power from the years before, by designing and adopting a Constitution that demands that all people who are exercising administrative state power be rational. When crucial constitutional rights are limited, it is also important for the state to choose mechanisms to achieve legitimate state ends that are the least restrictive mechanisms possible.

This is because of a general presumption in favour of freedom, and a burden of both rationality and proportionality when we assess whether decisions taken by the state are reasonable. This makes legal as well as both moral and political sense.

It is hard, when we are worried about contracting Covid-19, to know how much of this normativity to insist on. But here is the danger of choosing silence or feeling guilty about stress-testing government action during this time: if you are not careful, you may inadvertently permit the state to develop a culture of not answering to the demand for reasons. That is undesirable.

Early Constitutional Court cases rightly and proudly underscored the beauty of insisting on reasons for state action. If the SANDF and SAPS are given instructions, we need to know what these are, what purpose they serve and what the mechanisms are for lodging complaints when members abuse their power to thereby ensure that the commitment to accounting for the exercise of state power is not sacrificed on the altar of pandemic fear.

We can be partners with the government in practising physical distancing, keeping our movement to a minimum and showing stakeholder interest in co-creating a safer new normal, yet also do all of this while holding on to the best of the immediate past we are swiftly moving on from.

One of the principles of our immediate past we can and must hold on to is the demand that governments across the world offer reasons, that are publicised and tested publicly, for why they do what they do. To not travel with this principle into a post-Covid-19 world would be to allow an anti-democratic turn to take hold in society, which is self-evidently not in our collective interest even as we desire for nothing more right now than the curve to be flattened.

We have the historical burden, I am afraid, of simultaneously fighting the public-health battle that has exhausted us existentially, while not ruining the most intrinsic elements of our democratic edifice. One aspect of that edifice is to make sure state power is reason-bound, always.

This does not mean we must be contrarian and overzealous. There are clearly many regulations that are, in their specificity, either patently irrational or even arbitrary. A bored and litigious citizenry could clog the courts testing all of these. That is pointless. Lawfare isn’t desirable. We should put brinkmanship aside and collectively solve the problems in society that tie our fates together.

Sadly, there is often a lack of generosity with which some of us enter debates about the lockdown. Not every error the state makes requires an arcane essay to be written and published. We should commit ourselves to working with the government, in the spirit of flattening the curve, and do what scientists and public-health activists advise us to, even if some of the details that find expression in the Government Gazette can be rather daft.

That said, the complexity I alluded to at the beginning of this opinion requires us to constantly recalibrate what it means to strike that balance between supporting the government and holding it accountable — and how to do so.

It is neither the time for grand anti-state posturing (to no end) nor the time to berate active citizens for simply refusing to lower the standard of political leadership just because a virus is humbling our species. We can and must both refuse to view the state as an enemy and refuse to give it unchecked powers over us.

“We should put brinkmanship aside and collectively solve for the problems in society that tie our fates together.”

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Eusebius McKaiser
Eusebius McKaiser
Eusebius McKaiser is a political and social analyst at the Wits Centre for Ethics. He is also a popular radio talk show host, a top international debate coach, a master of ceremonies and a public speaker of note. He loves nothing more than a good argument, having been both former National South African Debate Champion and the 2011 World Masters Debate Champion. His analytic articles and columns have been widely published in South African newspapers and the New York Times. McKaiser has studied law and philosophy. He taught philosophy in South Africa and England.

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