Disaster vs separation of powers


Seven weeks into the Covid-19 lockdown, the voices calling for its end have become louder and shriller, none more so than that of the Democratic Alliance, which now has four court cases on the go, challenging different aspects of the lockdown.

Whatever one feels about the public utterances of the DA’s leaders, this should not detract from the significance of the court cases — in particular its Constitutional Court challenge to the Disaster Management Act, which raises crucial questions about the separation of powers, a foundational value of the Constitution.

The doctrine of the separation of powers holds that there are three arms of state: the legislature, the executive and the judiciary. Each has — as laid out in the Constitution — different powers, which operate as a constraint on the power of the others. The legislature — the elected representatives — has a special place in the constitutional order because it is the arm of the state most directly accountable to the people — through regular, free and fair elections.

But the official opposition says section 27 of the Disaster Management Act denudes Parliament of its constitutional roles: to legislate and to oversee the executive. Section 27 empowers a Cabinet member — the minister of cooperative governance and traditional affairs — to declare a national state of disaster and to make regulations under it. It allows for the creation of “something like a state of emergency”, but without the safeguard of parliamentary oversight, says the DA.

“For seven weeks, the country has existed under what can only be described as a de facto state of emergency, and will continue to do so for the foreseeable future. South Africans have been locked up in their houses. Businesses have been precluded from operating. Thousands have been arrested. A curfew had been imposed while the army, 76000 strong, patrols the streets outside. And yet the president has not declared a state of emergency under section 37 of the Constitution, and Parliament has been given no say in any of this,” said DA leader John Steenhuisen.

In a notice to the highest court that it would oppose the application, the presidency said on Tuesday the application for direct access should be dismissed immediately.

The notice — from the state attorney on behalf of President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma — did not answer the DA’s case in detail but said the party had overlooked the fact that Parliament’s rules had “ample provisions” to allow it the scrutinise the lockdown laws.

“The rules of Parliament provide mechanisms for the oversight of the executive. It is not required that every piece of legislation must establish its own oversight mechanisms,” said the notice.

Steenhuisen argued that the Act took away the legislative authority of Parliament. Although the Constitution allowed the executive to make regulations “to fill in” the detail of legislation passed by Parliament, this is not what is happening here, says Steenhuisen.

“At the stroke of a pen, the minister and her delegees can lock citizens in their homes, outlaw visiting friends and family, criminalise outdoor exercise in the afternoon, close the nation’s borders, ban commercial flights, prohibit night-time public transport, outlaw gatherings, ban open-toe shoes and even mothball entire industries. Indeed, they have done every one of these things under the Covid regulations.”

Steenhuisen accepted in his affidavit that Parliament would not be able to predict ahead of time what kind of national disaster would strike and that, at such times, the government has to move fast. But it would then be essential to put oversight mechanisms in place “to preserve the proper balance between Parliament and the executive”.

This is what happens when a state of emergency has been declared, he said. Under a state of emergency, any regulations may later be invalidated by Parliament. “These checks and balances are strikingly absent here,” said Steenhuisen.

But the notice to oppose said the delegation of legislative powers in the Disaster Management Act was “entirely justified” — the whole point of the legislation is to allow the executive “to respond promptly, comprehensively and effectively to any variety of unforeseen national disasters”.

It is wrong, said the government, to compare a state of disaster to a state of emergency because, under an emergency, people’s rights are suspended. Under a state of disaster, no one’s rights are suspended and any limitation of rights must be justifiable under the Constitution.

Ramaphosa and Dlamini-Zuma also dispute that the case should be heard by the highest court. They say an identical case has been launched in the high court — “they should not be allowed to litigate the same issue in two courts at the same time”.

The Constitutional Court application is one of four court cases by the DA on the lockdown. There is also the high court challenge to certain specific lockdown regulations — including the jogging restrictions, the public transport restrictions and the curfew and a high court challenge to the use of race, black economic empowerment status, gender and other such criteria in dispensing Covid-19 relief to small businesses. The DA, to be on the safe side, has also brought to the high court the same case it has brought in the Constitutional Court — in case the ConCourt rejects them on direct access.

The cases on the role of Parliament — identical in the high court and the Constitutional Court — are different to the challenges to specific aspects of the lockdown. In the Constitutional Court case, the merits and demerits of specific regulations are not in issue, the issue is a bigger one: on the role of the legislature during a state of disaster.

In terms of an immediate effect on people’s lives — it is the high court case (on jogging and curfews) that will affect us most. But with SA moving rapidly toward level three and with changes happening even to the level four regulations, this case may get overtaken by events. On Tuesday, the day the government was asked to answer to the case, the state attorney said the government would only be able to respond by Thursday.

Things are fluid at the moment, but all indications are that we will be moving between levels of disaster for the foreseeable future. This means the powers of the executive, relative to the other arms of state, during this time is not an obscure question of constitutional philosophy.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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