….editorial, 30 May 2020
Regulations mania hits South Africa …..
Winston Churchill, perhaps the greatest political and parliamentary figure of the last century, said that if you make 10,000 regulations you destroy all respect for the law. Take a look at South Africa where far too many conflicting and nonsensical regulations are espoused on a weekly basis, some of them with only a loose and highly doubtful connection to the law, the Disaster Management Act, under which they are gazetted.
What started with good intent in the rush to halt the spread of Covid 19, ‘flatten the curve’ and buy time to build medical supply lines and PPE reserves, has turned into a regularised pattern of government by dictate. We are in danger of getting used to the idea of government finding a way around the people’s Parliament just because 400 people can’t gather together in the light of social distancing, in itself another regulation.
This shortcut to governance has to be stopped before it becomes regularised in any way. In the process of searching for a way to speed up what at times can be a cumbersome system of democratic checks and balances, the country has invented an immensely powerful and what could well be an illegal intervention named, by somebody unknown, as the National Coronavirus Command Council.
Rules in bulk
After only a month of the president’s announcement of the declaration of the national state of disaster, more than 50 sets of Covid-19 related regulations, directives, notices and directions have been published nationwide in its name. Lawyers and business chambers are struggling to keep up with it all.
The problem now being faced is two-fold. Firstly, the high-sounding and most unfortunately militarised name of “Command Council” represents an entity not recognised in the Constitution, or anywhere in the statute book. It is purely an invention of a clique within the governing party as an instrument to administer a law cobbled together in a few months called the Disaster Management Act.
Somehow, without the knowledge of Parliament, a handpicked number cabinet ministers, chosen one has to assume by persons residing at Luthuli House, has granted executive functions and powers to a pick of between 8 and 19 cabinet ministers (the number varies) who meet at undisclosed places and take national decisions.
The same unknown group has ignored some thirty to forty other cabinet ministers for reasons unstated to form this command unit and there we have it, a new grouping administering a whole country by regulation. It is so important that we do not get used to this alien concept as a substitute for ordinary democracy, whether or not it has a body a scientific expertise advising it or not.
On the subject of powers, the Constitution is quite clear – all cabinet ministers are accountable “collectively and individually to Parliament”. But to repeat, this caveat is made nonsense of when a cabinet cabal, including the Deputy President, start making government policy affecting citizens’ rights without even a parliamentary nod.
Granted, that originally there was a need for speed and given the fact that Covid 19 is a disaster of global proportions, it was understandable that hastily convened and rushed virtual parliamentary portfolio committee meetings tried vainly to “debate” the issues that might arise as a result of implementing the Disaster Management Bill. In fact, they did remarkably well in the circumstances and South Africa became the first country to try and handle parliamentary debate electronically in the light of lockdown.
Law by laptop
Virtual meetings make any meaningful debate nearly impossible at the best of times. They are designed more for briefings than for discussion. In the understandable rush, the buttons pressing the “ayes” became the norm in the short time allowed. The Disaster Management Act (DMA) is the result and is now history.
Now, the buttons are being pressed by Dr Nkosazana-Zuma, the Minister of Cooperative Governance and Traditional Affairs (COGTA), the department which the DMA empowered, most assuming that COGTA would be more of a spokesperson for the system to be adopted.
Governance by regs
However, “risk-adjusted strategy regulations” were published in a flash by COGTA in the light of the disaster (not emergency) powers with a statement that read, “The Cabinet minister responsible for cooperative governance and traditional affairs upon the recommendation of the cabinet member responsible for health and in consultation with cabinet, declare which of the following alert levels apply, and the extent to which they apply at a national, provincial, metropolitan or district level.” It all sounded like we had things in hand.
In the UK or Commonwealth countries, this process would have amounted to making Dr Nkosazana-Zuma prime minister and Dr Zweli Mkhize her deputy prime minister. Nevertheless, Parliament in SA soon fell outside of the inner circle when it came to oversight. Parliament deals with legislation not regulation.
What sticks to the wall
After a week or so, it became more than noticeable that many of the regulations just did not link up and appeared randomly unconnected. The cooked chicken problem, no flip flops and absurd choices on who could and could not work. Looking at it from a parliamentary aspect, to create temporary hospitals and to ban liquor and cigarette sales, and then cancel one factor but not the other, seemed not only a stretch under the same law but also a legal anachronism.
Worse, just the act of banning liquor sales and thus damaging the tourism and hospitality industry possibly forever is unlikely to pass any “justification analysis” constitutionally. Most of the public comments called for in the form of business submissions are now accumulating in government offices or parliamentary boxes and certainly unlikely ever be seen by Dr Nkosazana Zuma. She is known for having no appetite for this sort of thing, as was discovered by the African Union.
Now many of the regulations are causing serious “unintended consequences” in application, such as schooling, resulting in a law gone rogue. A further well publicised example has been where regulations allow religious gatherings whereas most major religions did not call for them, nor will exercise them. Gatherings include funerals for the dead but not a healthy game of bowls for the elderly. Most have no idea of who consulted who on outcomes, representing more muddled thinking by a body which records no minutes and meets in secret.
South Africa has invented a most dangerous mechanism where everybody just relies on the Presidency to eventually “put things right” when the panic is over. To do this, President Ramaphosa, in the light of a forthcoming ANC conference, will have to dissolve this mechanism somehow and terminate its powers. This politically powerful entity is led by a person who contested with him the position of president and who split the governing party in half doing this.
Its going to be a bumpy ride.