SOUTH Africa’s state of disaster laws should be changed so that they cannot be extended indefinitely without any parliamentary oversight, or an opportunity for effective public challenge, says business group Sakeliga.
The group was commenting on the proposed Disaster Management Amendment Bill which is undergoing a consultation process in parliament this week.
The government has relied on the state of disaster to introduce and give effect to the lockdown restrictions used to curb the spread of the Covid-19 pandemic over the last two years.
However, Act has faced criticism from various sectors of society for giving the national government wide-ranging and near-limitless power over the lives of citizens, with little to no oversight from parliament.
The amendment bill acknowledges this issue and also that the Disaster Management Act does not currently provide adequate legislative accountability and oversight over the regulations published in terms of it. This includes the duration of a state of disaster, nor in respect of the extension of a state of disaster.
In its presentation to parliament on the Bill this week, Sakeliga said the excessive discretion given to Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini-Zuma is ‘injurious to the rule of law and the constitutional order’.
“One cannot deny the devastating impact of Covid-19; however, the current government reaction failed to strike a balance between other injuries to public health – many of these imposed by government’s unevaluated, evidently uncosted, and excessive lockdown response.
“To date, the state of disaster has been renewed monthly since March 2020. The public has had little effective means to challenge these measures; not in direct appeals to the government, nor to the courts. Where there have been legal challenges, the courts have tended to defer to the expertise of government, something we regard as legally suspect and improper.”
Other avenues of pandemic management were available to the government, Sakeliga said.
“These include strategies to shield the vulnerable – such as elderly and comorbid – bearing in mind the severe age graduated impact of Covid-19 mortality and morbidity. The Constitution requires the government to pursue the least invasive avenue to achieve purposes that involve the limitation of rights.”
Changes proposed
The amendment bill acknowledges these and other issues and proposes the following:
- A national state of disaster may be effective only ‘prospectively’ (going forward) and for no more than 21 days, unless the National Assembly resolves otherwise.
- A minister may terminate a national state of disaster before it lapses.
- A copy of the notice declaring a national state of disaster must be tabled in the National Assembly, and the National Assembly may disapprove of any regulations or directions made under such a declaration or may make recommendations to the Minister pertaining to such regulations and directions.
- Only the National Assembly, a provincial legislature or a municipal council may resolve to extend a declaration of a national, provincial or local state of disaster respectively and for how long.
- The Bill also provides for the requisite majorities required in the National Assembly, provincial legislature and municipal council to extend a national, provincial or local state of disaster, respectively.
- A resolution to extend a national, provincial or local state of disaster may only be adopted after a public debate.
The Department of Cooperative Governance and Traditional Affairs opposes the amendments, saying that the proposed changes will hamper the efficiency of taking swift action when disasters occur. It added that it is of the view that sufficient mechanisms already exist to perform necessary oversight.
South Africa’s state of disaster is now set to expire on 15 March 2022. This would make it nearly 24 months the country has been under a state of disaster since it was first declared at the end of March 2020.
While the national state of disaster was initially set to lapse on 15 June 2020, the act provides that it can be extended by the Cooperative Governance and Traditional Affairs minister by notice in the gazette for one month at a time before it lapses.
The government has relied on the regulations to introduce and give effect to lockdown restrictions, which it has used to curb the spread of the Covid-19 pandemic.
However, it has also faced criticism for giving national government wide-ranging powers over the lives of citizens, with few limits and little to no oversight from parliament.
President Cyril Ramaphosa has indicated that the latest extension will be the last.
- * BusinessTech
