Getting out of the current state of disaster governing Mzansi’s response to Covid-19 is not as easy as just declaring it over, warns Professors Elmien du Plessis and Dewald van Niekerk.
The global Covid-19 pandemic not only heightened interest in the field of disaster risk management, but in several instances required the use and implementation of emergency laws. South Africa was no exception.
It became clear early in the pandemic that normal laws and regulations were insufficient to deal with the disaster. For the first time since the promulgation of the Disaster Management Act in 2002, a national state of disaster was declared to manage and mitigate the possible risks and fallout.
Extraordinary measures were needed, and the national state of disaster became the vehicle through which the government exercised exceptional powers to curb the spread of the pandemic. The measures included the initial restriction on movement, curfews, mask wearing and a limitation on gatherings.
We offer some thoughts on this as members of a team set up by the government to evaluate the state’s response to the pandemic.
We suggest that the country still needs some health regulations but they can be put in place in terms of the National Health Act instead.
States of exception
The law, in general, makes provision for “state of exceptions” – situations where normal laws cannot regulate an exceptional occurrence. These laws usually authorise the limitation, in some instances even derogation, of rights to manage the situation.
Citizens must always be vigilant that the exceptional powers do not become permanent and that the powers are not used to achieve other objectives. It is also not sustainable to govern for prolonged periods under such exceptional circumstances as allowed for by emergency legislation.
South Africa has the State of Emergency Act and the Disaster Management Act. These two laws govern two different sets of exceptional circumstances. A state of emergency can only be declared when there is a threat on the nation’s life. This is why the government chose the Disaster Management Act to deal with the pandemic in South Africa.
The Disaster Management Act
The Disaster Management Act defines a disaster as an extraordinary event that has a significant impacts on humans and the environment and exceeds the ability of those affected to adequately deal with the situation using their own resources.
As the pandemic unfolded globally, the government quickly realised that extraordinary measures were needed, which were very time-sensitive. Minister of cooperative governance and traditional affairs Nkosazana Dlamini-Zuma declared a state of disaster on 15 March 2020.
This is done to determine which sphere of government is responsible for coordination and management. In the case of a national disaster, the national executive is primarily responsible.
Once it is classified as a national disaster, the minister of cooperative governance and traditional affairs is permitted to declare a national state of disaster if existing laws or other arrangements do not adequately provide for the executive to deal with the disaster (or if other exceptional circumstances warrant it).
Renewing the state of disaster
Once a national state of disaster is declared, the national executive can issue regulations or directions to deal with it. A national disaster declaration lapses after three months but may be extended by the minister one month at a time.
The courts can review the declaration and extension of the state of disaster – through the principle of the rule of law of the constitution, under the Promotion of Administrative Justice Act, or against any of the fundamental rights in the constitution.
Likewise, the National Assembly must scrutinise and oversee the executive function. The constitution has specific mechanisms to ensure such oversight.
Members of the executive remain individually and collectively responsible to parliament. Whether this happened or is effective is open to debate – and can be reviewed in the courts – but the fact is that the Disaster Management Act does not preclude parliament or the courts from performing their ordinary functions.
The Disaster Management Act is only applicable when other legislation is inadequate. So, is there other legislation that the government could have used to manage Covid-19? The National Health Act, for instance, already makes provision for regulations and quarantine in the case of certain notifiable medical conditions. Coronavirus is a notifiable medical condition.
The pandemic brought much uncertainty. The National Health Act focuses on the health system and health services. So the National Health Act probably would not have been able to create the regulations that were needed in March 2020. In that sense, national legislation did not adequately deal with the disaster.
But things have changed.
Exiting the current state of disaster
Over the past 20 months, a lot has been learned about the pandemic and what is needed to manage it. There is no need to act so quickly now.
That does not mean one can just exit the state of disaster. The current regulations – from sanitising and mask-wearing to the curfew and restriction on the number of people in gatherings – are done under regulations that depend on a state of disaster being declared. If the state of disaster is not extended, the whole complex web of regulations will no longer be law, and there will be very few regulations to manage the pandemic.
To address this untenable situation, the minister of health must make regulations under the National Health Act to regulate matters such as mask-wearing, social distancing, gatherings and vaccinations. Such proposed regulations must be published in the Government Gazette at least three months before commencement, and this can be circumvented “if circumstances necessitate” it.
Avoiding states of disaster in the future
Longer-term planning for future pandemics includes the department of health institutionalising disaster risk management. The one big lesson learnt from Covid-19 is that the Disaster Management Act and the National Disaster Management Framework require disaster risk reduction planning to be in place in all ministries, all the time.
This will reduce risks in the case of a hazardous event, which in turn means that ordinary legislation might be able to cope with its management, reducing reliance on states of disaster being declared in the future.
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