The outbreak of COVID-19 in South Africa and the attached national lockdown regulations have left many people questioning the constitutionality of the restrictions and the seemingly blurred line between law, morality and politics.
It’s just over a month since the country moved from Level 4 to 3 of the national lockdown at the beginning of June.
The terms set out by cabinet and gazetted by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma have largely helped the country slow down the spread of the deadly coronavirus.
But, at the same time, they presented a variety of challenges to people as movements and economic activities were restricted.
The South African government, though, has received global praise for its stern and decisive leadership since the pandemic hit our shores.
The decision to put the country under lockdown at an early stage of the national outbreak has proved beneficial as it slowed down the spread of infection and gave the health system enough time to prepare for the inevitable peak in infection.
However, a recent judgment by the North Gauteng High Court which declared Level 3 regulations unconstitutional and invalid raised even more questions.
The court ruled that the Level 3 regulations will however stay in place for 14 working days to allow the minister to consult with relevant stakeholders and amend the regulations.
This left many people asking why the government would publish unconstitutional regulations in the first place.
Section 7.2 (ii) of the Disaster Management Act stipulates that the disaster management framework must also facilitate community participation in disaster management.
Under the current political system in South Africa, legitimate public representation is exercised in the National Assembly where it provides a link between the government and the citizens, which is seen as a critical index of a democratic government.
So, do all of these oversight systems cease to be relevant under the COVID-19 lockdown as parliamentary functions are by-passed by the National Coronavirus Command Council?
Under the national lockdown, the country finds itself in a time where law enforcement institutions seem to be enforcing moral values to society.
But unlike the law which is objective in character, morality is subjective because it is based and influenced by personal judgment and feelings.
Let us consider the banning of cigarettes: what is the government enforcing here?
Many other regulations have been introduced by the government during this period.
One can argue that this is more of a moral issue than a mechanism to contain the spread of COVID-19.
Let us consider the outrageous statistics of gender-based violence in the country during the lockdown period.
Gender-based violence has actually become a pandemic in itself.
It has ruthlessly thrived way before the COVID-19 pandemic.
Women and children have lived for many years under circumstances where rape victims hardly get justice, yet the country has a constitution that is supposed to protect them.
Whose rights is the South African law protecting because from where I am sitting, this rigid constitution seems to be gradually becoming a slave document?
A classical statement on whether a government is enforcing morality was advanced by Patrick Devlin in ‘The Enforcement of Morals’ which argued that there is a ‘public morality’ which society has the right to enforce through the instrument of law.
Enforcing morality in a society involves prohibiting unrestrained freedom that may damage the fabric of society.
We have serial rapists and murderers roaming the streets of our communities, yet internationally, the country is praised for having one of the best constitutions.
Morality has decayed to a point that the elderly are also victims of rape, yet we would rather unleash the army to enforce COVID-19 regulations when the nation was already facing its own pandemic of gender-based violence.
We find ourselves in a time where law-enforcement agents promptly respond to enforce order as well as COVID-19 regulations over individual freedoms.
How many more gender-based violence victims will it take for the country’s constitution to be amended to address gender-based violence head-on?
It’s evident law-enforcement institutions are not winning in this regard and, therefore, it’s time to remove the facade of a blurred line between law, morality and politics especially when serious societal ills need to be eradicated.
- Ntombi Nhlapo is a political science facilitator at the University of the Free State. She is also an entrepreneur and community activist.