COVID-19 Lockdown and the lack of legislative oversight over the executive in South Africa

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Introduction

South Africans responded by and large positively to President Cyril Ramaphosa’s initial call for a national COVID-19 lockdown. Citizens indicated their preparedness to surrender aspects of their civil rights in the interest of the common good and the compelling necessities of the crisis, recognising the necessity of prioritising the right to life of the many who might be susceptible to the virus.

The recent extension of the lockdown for a further two weeks was met with some concerns. It is feared that it will deepen South Africa’s economic crisis. Others argued that it must end and started to look at how and when.

Rights affected by the national lockdown

The declaration of a national disaster in terms of the  Disaster Management Act 57 of 2002 has affected several of the fundamental human rights enshrined in the South African Constitution. These include the freedom and security of the person, freedom of expression, assembly, movement and residence, trade, occupation and profession, and the rights to education, privacy, and access to information.

The concentration of power in the executive branch

The concentration of all the power in the executive branch of government to deal with and manage the health crisis, without appropriate oversight, should be of concern to ordinary South Africans.  Kenneth Roth of Human Rights Watch recently wrote of the inherent dangers thereof in an article How Authoritarians Are Exploiting the COVID19 Crisis to Grab Power.

“Recognising that the public is more willing to accept government power grabs in times of crisis, some leaders see the coronavirus as an opportunity not only to censor criticism but also to undermine checks and balances on their power. Much as the “war on terrorism” was used to justify certain long-lasting restrictions on civil liberties, so the fight against the coronavirus threatens longer-term damage to democratic rule.”

Danger signs of the abuse of such concentration of power

Since the announcement of the lockdown, we have seen excesses by the security forces despite the Presidents pleas that they act with constraint, we have seen worrying signs of kragdadigheid from the securocrats in the executive, we have seen Ministers overreaching in terms of what they are planning to do and we have seen how people are treated differently when contravening the lockdown requirements with the starkest of these being a member of the executive only getting a reprimand and a two-month suspension as Minister, whereas ordinary South Africans are summarily arrested when contravening the regulations.

In addition, serious concerns have been expressed initially over aspects of the executive branch’s intention to use location data in the fight against COVID-19.  The government’s changed position on this is clear from the changes between an initial set of directions issued on 26 March and new regulations issued on 2 April and their change of heart can be ascribed to the pressure civil society put on the country’s surveillance regime even before the crisis.

In the initial lockdown rules, Regulation 11E offered wholesale indemnity for police, soldiers and peace officers like metro and traffic police, collectively defined as enforcement officers from any claims for damages or injury arising out of the performance of their duties in terms of the regulations. Just two hours before the lockdown, new regulations withdrew the wholesale indemnity for enforcement officers. This initial provision was made although such indemnity is banned even in a State of Emergency, according to Section 37 of the Constitution and illustrates the dangers inherent in the executive having unfettered powers confirmed upon it without appropriate oversight.

Role of the judiciary in overseeing the executive branch

Professor Balthazar highlights that securocrats need oversight even in the midst of a pandemic but Especially in the midst of the pandemic. He however, argues that in the current situation such oversight is primarily the role of the courts:

“….the temptation of members of the executive to move out of their designated lane during this lockdown is cause for concern and therefore some independent control. For this reason, civil society needs to be vigilant. While the judiciary has, in the two cases brought to date, been wise to defer to executive decisions made to protect the health of the nation, courts will remain the primary mechanism of oversight under the present dispensation.”

Advocate Gary Pienaar in an article on Democratic oversight in the time of the COVID-19 lockdown highlight that Chief Justice Mogoeng Mogoeng importantly instructed the courts to stay open during the lockdown, among other reasons so that citizens could challenge the lockdown rules if necessary. The Constitution makes provision for such challenges, even under a state of emergency, which gives the government extraordinary powers, beyond those it now has in terms of the declared state of national disaster.

The judiciary is therefore well placed and able to exercise oversight over the executive. Speedy access to the courts is however beyond the means of most South Africans and will be beholden to civil society organisations and watchdogs to ensure that the courts are approached when necessary to seek appropriate relief.

Oversight by the legislative branch over the executive

What then of oversight by the legislative branch of government? Parliament commenced its scheduled recess and constituency period on 18 March, within three days of the declaration of the national disaster, suspending all sittings until 13 April 2020. This despite the health crisis facing South Africa and the power now concentrated in the executive branch. With the extension of the lockdown by a further two weeks it is not clear what Parliament is planning to do post 13 April 2020.

A media statement issued on Friday 27 March states that Members of Parliament, who are classified under the lockdown Regulations as amongst those performing essential services, will be fulfilling their constitutional responsibilities during this period, in their constituencies in support of efforts against COVID-19. As advocate Gary Pienaar however highlights –

“The statement provided no guidance or direction as to how the members of parliament are to fulfil these constitutional responsibilities, including the duty to scrutinise and oversee executive action, or the duties to facilitate public participation in oversight during a lockdown.”

On Sunday 5 April 2020 Parliament issued another media statement. The statement opiniates that it is the Executive’s responsibility to ensure that it safeguards the rights of individuals during these difficult times and for Parliament to oversee the delivery of services needed to relieve the burden of the COVID-19 pandemic on the public. It goes on stating that Parliament must not be seen as interfering with the responsibility of the Executive to implement measures for which the national disaster has been declared.

Oversight during a lockdown can, in terms of the statement, be done through, for example, individual MPs carrying out constituency work in various communities and holding the Executive accountable for implementing measures designed to overcome the state of disaster. The responsibility to conduct oversight is, therefore, not limited to committee meetings.

Other than the aforementioned Parliament sees no need to do more in respect of oversight and in summary, indicates that the Legislator will, after this period, still be able to hold the Executive accountable, in the usual ways, over how it executed the state of national disaster.

Parliament went as far as to deny a request of the Democratic Alliance to establish an oversight committee over the cabinet and state organs during the COVID-19 lockdown. In response to the decision of the Deputy Speaker of Parliament the leader of the opposition stated that Parliament has been rendered obsolete by refusing to adapt to the changing government during this time and the changing circumstances surrounding its work.

In comparison, the Speaker of the Western Cape Parliament announced his intention to establish an ad hoc committee to conduct oversight over the Western Cape Government’s response to COVID-19, which announcement has been welcomed.

International experience in oversight over the executive during the COVID-19 crisis

According to the 5 April media statement of Parliament parliaments all over the world are grappling with the effect of the COVID-19 pandemic on their constitutional obligations, such as oversight, lawmaking and public involvement. The question should be asked whether the South African Parliament have then considered any of the international experience in oversight over the executive during the pandemic?

Ittai Bar-Siman-Tov conducted a comparative survey in March 2020 on Parliamentary Activity and Legislative Oversight during the Coronavirus Pandemic. He highlights that the serious challenges the virus poses for legislatures in many countries around the world are twofold. First, the Coronavirus, and the measures taken to contain its spread, makes it difficult for parliaments to operate given the size of most legislators and the fact that the standing orders mostly require members to be physically present at sittings.

The second challenge is that governments in many countries have treated the situation as an emergency (either in practice or also formally declaring a national state of emergency). He warns that during states of emergency, executives want to accumulate power, centralize authority and be as effective, swift and expedient as possible. They tend to want to circumvent the legislatures’ cumbersome legislative process and evade parliamentary scrutiny.

“The Coronavirus crisis is no different, as many heads of the executive branch around the world declared “war” on the invisible Coronavirus enemy. Consequently, many governments have reacted by adopting far-reaching restrictive measures to combat the spread of the Coronavirus. These measures often infringe on a host of fundamental human rights (such as liberty, freedom of movement, freedom of assembly, freedom of occupation, and privacy) and raise rule-of-law qualms. These measures are mostly adopted through executive orders, governmental decrees, emergency regulations and so forth – all being legal norms that are made by the executive branch, bypassing the traditional legislative process by parliaments. This raises crucial questions about the power of the executive and the role of the legislative branch in overseeing this power. It raises vital questions to the wellbeing of democracy itself during the Coronavirus crisis.”

What were the main findings of his comparative survey which covered 26 countries? These can be summarised as follows:

  • In all the surveyed countries it was taken for granted that the government cannot shut down parliament or determine its mode of operation. It was agreed that it was up to the parliament to determine its operation during the coronavirus pandemic.
  • The majority of responses received was that parliament must continue to operate throughout the Coronavirus crisis. Indeed, most surveyed parliaments (22 out of 26) continue to operate.
  • This is true even for Italy – the country that has so far been most ravaged by the Coronavirus, and whose death toll surpassed the death toll in China.
  • This is also true despite the fact that in several of these parliaments, such as in France, the UK and the US, several MPs and ministers have been diagnosed with the coronavirus).
  • In the four exceptions to the general trend, even in parliaments that closed their session or suspended their activity, this has always been a decision made the parliament (rather than the executive), and usually at least some legislative oversight was maintained. For example, in Lithuania, Parliament has closed until April 7, but plenary meetings and committees on urgent issues are held; and in Slovenia parliamentary activity was generally deferred, but the National Assembly will hold meetings about exceptional cases.
  • Of the legislatures that continue to operate, there appear to be two models: some legislatures (such as in the US, UK, and South Korea) continue as usual with their regular mode of operation; whereas others have modified their operation with such modification becoming more common even in some of the parliaments who have made no changes to date.
  • One of the common modifications includes a reduced number of meetings and changes to the parliamentary agenda, focusing on the Coronavirus and other necessary and urgent issues, while postponing less immediate issues.
  • Another common modification is finding various means to limit the number of MPs attending a sitting while maintaining the minimal quorum rules and keeping the proportional representation according to the relative size of the parties.
  • Additional modifications include videoconferencing and other technological solutions to avoid or minimize physical presence (albeit in some parliaments this is still considered problematic given quorum rules that require a physical presence).

Conclusion

Given the international experience, the critical importance of the legislative branch exercising oversight over the concentration of power in the executive during the COVID-19 pandemic and the danger signs already seen locally of the possible abuse of such power; serious and critical questions must be asked of the lack of action by the South African Parliament and our elected representatives to date to ensure real and effective oversight.

In her recent article Now is not the time to suspend parliamentary oversight Samantha Waterhouse asks pertinent questions following the 5 April media statement of Parliament. These include on what basis will the legislature call the executive into account during the period, there may be many opinions on what’s reasonable during a crisis situation so what should the limits be on executive decision-making, what the requirements for seeking legislative go-ahead should be beforehand, or reporting on decisions taken after, during the disaster period?

She rightfully concludes that the work of the past two decades to promote an accessible, strong and independent legislature must be increased, not relaxed at this time. The question remains if the South African Parliament will be equal to the tasks and if our elected representatives will stand up for us the ordinary citizens, to keep in check the extraordinary powers accumulated in the executive in this moment of crisis. Only time will tell.

Postscript

This article dealt mainly with oversight by the legislative and judiciary branches of government over the executive in dealing with the COVID-19 pandemic. The media and civil society similarly have a key role to play in this regard and their efforts should be welcomed and supported. Given the role of the media, two recent incidents are of concern – the media being barred from entering a courtroom in a COVID-19 related case and a journalist being shot at when covering police action and subsequently being mocked when reporting the incident.

The following are additional links that will be useful in considering the topic of this article:

The rule of law in times of crisis: COVID-19 and the state of disaster 

Ensuring citizen oversight in Kenya during the COVID-19 pandemic 

What does a COVID-19 national state of disaster mean for rights? 

Ipid investigates 21 complaints of murder, rape and assault against cops during the lockdown 

Concerning lack of parliamentary oversight – DA 

COVID-19: Contact Parliamentary Committees and MPs about government’s actions and response

Opinion: Fear and policing in the time of COVID-19

Security forces are waging war on our constitutional democracy