What happens to the rule of law in a time of crisis?
Does it survive or does it explode? The foundation of the South African state was a moment of political crisis, arising from British military conquest. Law was an instrument of the strong. It functioned to legitimate the settler colonial state.
Another country in which the law justified conquest is the United States. During the American revolution against British settler occupation, one of the leading thinkers of the new independent American state, Alexander Hamilton, perceived the judiciary as the “least dangerous” branch of government. He reasoned that the judiciary could do no harm to the rights of citizens protected by the US Constitution. The control of the defence force, the budget, and the police fall within the legislative and executive branches of government, not the judiciary.
Centuries later, Hamilton’s views proved true. In response to the crisis of 9/11, it was the executive, under then president George W Bush, that took the country to war, often acting in excess of statutory and constitutional powers. Yet at the exact moment of crisis, Bush’s excesses were excused in the name of security. Law was no longer seen as the glue that held the nation together — it could be dispensed with. And there would be no popular uprising to protect the law. Security from the threat of “global terror”, it seemed, was all that mattered.
South Africa’s fidelity to the rule of law is of recent origin. It was only 25 years ago, in 1994, that South Africa’s first legitimate president, Nelson Mandela, yielded political authority to the rule of law, pronouncing that South Africa’s democracy depends on the law, and that the Constitutional Court is the ultimate authority on legality. Yet the Constitution contains a clause that recognises the possibility for suspending the law in a moment of crisis.
Our collective experiences with political crises are security-related: the South African War of 1899-1901; the Boer rebellion of 1914, in response to the union government’s position on the First World War; the Rand strike of 1922; the Sharpeville massacre of 1960; the Soweto massacre of 1976; and the state of emergency of 1985 are all examples of security crises. These were used to justify the suspension of the law. It was these experiences that influenced the limited powers of the president during a state of emergency provided for in section 37 of the Constitution to restrict the purpose of a state of emergency to the restoration of “peace and order”.
Yet a wider understanding of history could also have placed national health emergencies within the frame of the state of emergency provisions. Four health emergencies from our history come to mind: the small pox of 1713, which nearly wiped the Khoi population in the Cape; the cattle disease of 1856-1857, which resulted in the Xhosa cattle killing catastrophe; the rinderpest disease of 1898; and the bubonic plague of 1899 to 1901 in the Cape, which produced South Africa’s first black township, KwaNdabeni.
The legal ramifications of the bubonic plague
The bubonic plague is significant for another reason. Not only was the law suspended, the response of the Cape authorities was political, blaming the African population for the spread of the plague, ejecting them from the cities and confining them to cramped camps. In the midst of the crisis of mass evacuation and ejectment of Africans from the city of Cape Town in 1899, the soft glove of “health” and “hygiene” masked the iron fist of law and order. When the plague was over, lives had been irrevocably changed. A new state ― with drastically expanded powers in the hands of politicians; diminished rights of individuals; and a new social order, based on racial segregation ― was installed. Few could imagine life before the outbreak of the plague.
The echoes of the bubonic plague of 1899 ring true in the official modes of responses to Covid-19. No law specifically applied to the health emergencies during the bubonic plague. The state applied whichever laws were in place that closely approximated the crisis. Today, our constitutional state of emergency regime is better suited for security-related emergencies. A declaration of a state of emergency is justified only when necessary to restore “peace and order”. At the same time, the law that has been invoked, the Disaster Management Act, is the closest approximation to a health emergency. It defines a “disaster” to include a sudden or progressive natural or human caused occurrence which results in “death, injury or disease”. It is, therefore, understandable to resort to this law. Yet some of the regulations currently applied resemble state of emergency regulations.
This, of course, is no criticism. The government faces an unprecedented crisis. It is doing its best to minimise infringements on individual rights. The larger point is that national health emergencies are usually on the backburner of the legislative agenda. They attack when least expected, and planning to counter them is a difficult undertaking. Individual rights are important. But life is a paramount individual right. Keeping us alive is the most important function of government. We are mostly prepared to lose some of our freedoms in exchange for being alive. Hence, there will be greater tolerance for the suspension of laws that guarantee freedoms and individual rights in a time of crisis because the justification is the preservation of life.
But it is necessary to recall that although some of the rights we enjoy under the Constitution may be suspended, the Constitution itself is not suspended. The government and its agents remain bound by law. When for instance, exceptions are announced to procurement laws such as the Public Finance Management Act,the provisions of the Constitution that regulate transparent, fair, competitive procurement are not suspended. Although physical movement is restricted, access to courts is not. Although the government retains the power to dictate official state health policy in response to Covid-19, the legality of those responses are for the courts to determine.
When political power translates to policing power
The suspension of laws necessarily concentrates power in the hands of politicians. Political power can rapidly translate to military and policing powers. Not everyone will obey the restrictions to “stay home” during the period of lockdown. Of necessity the police will be at the frontline of ensuring compliance. The potential for conflict between citizens and officers is manifest. Not only do the police have guns, they also have the authority of the state to use violence when necessary. In those conflicts, the rule of law can only be the casualty.
For human rights advocates, the moral choices in the states of emergency of the 1980s were clear-cut. There was moral legitimacy in opposing the presence of police and the soldiers in townships to enforce apartheid laws. Today, however, there is a pervasive sense of paralysis. The choices to be made are not obvious: although there is a willingness to embrace the state response to the health pandemic, there is a fear of excesses, which will be difficult to undo.
Yet although the law is severely stretched by the Covid-19 health emergency, the paradox is that the paralysis faced by human rights advocates can be answered only by law. Our Constitution’s section 36 provides a useful departure point. In the section, every right can be limited. Limitations, however, must take place in terms of laws of general application. Such laws, themselves must be reasonable and justifiable in an open and democratic society.
The formulation of section 36 may sound tortuous. But legal precedent has unpacked it: laws restricting individual rights should be proportional to the harm identified. They should also be designed in such a way that they do not encroach on other rights. Once the harm is restrained, the need for the limitation of freedoms will also diminish. At that stage, the state is expected to retreat from encroaching on rights and freedoms. But in the exact time of crisis, the lines are blurred. Necessarily, we must depend on the executive to uphold the Constitution, as they undertook to do on assuming political office. We should remember that even in a time of crisis, the rule of law is to be maintained.
Adv Tembeka Ngcukaitobi is a South African lawyer, public speaker, author and political activist. He is a member of the South African Law Reform Commission.