The past year I have been reading a fair bit about emergencies and emergency situations – also the philosophy behind it – how we should understand emergency situations and democracy. I was doing this more in the context of Covid.
While we did not declare a state of emergency to handle the pandemic, I think declaring a state of disaster and promulgating regulations in terms of it is still emergency legislation.
But now I am wandering off topic – today, I just want to talk about state of emergencies since I had a fair amount of queries about it after [Ramaphosa’s announcement] that he will be deploying the army to help with the violence in KwaZulu Natal and Gauteng.
So, what are emergencies?
The idea behind emergencies in law
Legal definitions of emergencies tend to be broad, but they do seem to share certain common characteristics. Emergencies deal with cases where the situation requires states (and citizens) to move effectively and efficiently to address the problem. Actions must be aimed to ensure the state’s survival and its citizenry, bringing back the situation to normal as soon and effectively as possible by temporarily changing how the state functions.
States of emergencies create a legal state that is different from times of normalcy. When there is an emergency, regardless of the nature, it forces the state to temporarily change some of its structures to address the situation. The situation is a situation that is different from the normal situation.
The threat must be of a magnitude that will severely harm the state or the citizens if not treated in a way that the regular legal order does not provide for. In other words, state structures need to change to address the emergency. It must be urgent, and the powers of the state must be precisely defined to deal with the crisis once it is manifested (or concrete). If the threat is not concrete, it needs to be dealt with in terms of regular legislation.
An emergency situation is exceptional.
This means, once the exceptional situation is no longer present, emergency law-making should also end and return to normality. The focus here is not only on the event that causes the emergency (such as a flood or an attack) but also the effects of the event. The emergency must be detached from the triggering event. Nevertheless, there is a temporal element to emergencies.
Emergency situations do not displace the rule of law. The law continues, albeit in a different form. Therefore, emergency laws do not do away with the principles of democracy, although they can temporarily change the structure.
A State of Emergency in terms of South Africa’s Constitution
Declaring a state of emergency
In terms of section 37 of the Constitution, a state of emergency can be declared (in terms of an Act of parliament) by the President if the nation is under threat and if the declaration of a state of emergency is necessary to restore peace and order. The Act, the State of Emergency Act 64 of 1997, provides in section 1 that ‘the President may by Proclamation in the Gazette declare a state of emergency in the Republic or in any area within the Republic’.
Such a declaration enables the President (and not the Minister of Co-operative Governance, as some Whatsapps suggest) to make regulations that must be tabled in parliament to allow for input, allowing members to disapprove or make recommendations.
There is no such as a state of emergency “in practice” – the public must be fully informed that there is a state of emergency and the reason for declaring such an emergency. This reason must be in the published Proclamation. It must also be clear what measures will be taken in terms of it.
Declaring a state of emergency grants the President the powers to make regulations necessary to expedient to restore peace and order.
A state of emergency can be declared for only 21 days but can be extended once by the National Assembly (maximum 3 months) with a 50% majority vote. It can be extended for a second time with a 60% majority vote after a public debate in the assembly.
The Constitution also provides that courts can decide on the validity of the state of emergency.
During a state of emergency, most of the rights in the Bill of Rights can be derogated, but only to the extent that this is strictly required by the emergency. Such derogation is only temporary, however, and the Constitution itself is not suspended.
If the ordinary law of the land can bring a restoration of peace and order, an emergency cannot be justified. The requirement of “necessity” requires proportionality. In other words, the declaration of the emergency must be proportionate to the response to the threat. However, there are opinions that this rather implies that the state has no alternative means at its disposal.
Just because there is some kind of disorder does not mean that section 37(1) of the Constitution is complied with. This section is obviously open for interpretation and will depend on the facts. Still, in general, the threat or the danger must be so significant that only a declaration of a state of emergency is necessary to restore peace and order. It is the last resort since it has vast implications for how democracy functions, but more importantly, it has a big impact on our rights.
Derogation of rights
State of emergency implies a derogation (suspension) from the protection that the we have in terms of the Bill of Rights. How this is to be done is set out in section 37. And this is important. This is not a blanket taking away of rights – the derogation must be proportional to the emergency, legislation that is promulgated (the regulations, specifically), must be made public, and there are certain rights that we deem so important that it simply cannot be derogated – like life, equality and dignity.
All this must happen in the framework of international law. Importantly, the state cannot indemnify itself in respect of unlawful acts. (As an aside: you might remember that the state tried to do that with the disaster regulations but quickly repealed those provisions.)
All these requirements can be taken to the courts – in a state of emergency, the court’s powers remain. Parliament still has a strong supervisory function, with the extension of granting a state of emergency dependent on a vote, and then the second time, on deliberations in the national assembly. So even if the power balance tips more towards the executive tasked to bring peace and order, it is not unfettered.
The Disaster Management Act
We currently have a state of disaster. One of the concerns raised is that the Disaster Management Act cannot be applicable simultaneously with a state of emergency. This is because of section 2(1) that states that :
this Act does not apply to an occurrence falling within the definition of “disaster” in section 1(a) if, and from the date on which, a state of emergency is declared to deal with that occurrence in terms of the State of Emergency Act, 1997 (Act No. 64 of 1997).
If the two cannot apply simultaneously, we are in trouble if a state of emergency is declared, as all the Covid regulations rely on the Disaster Management Act.
But fear not! A possible reading of the section is that “a state of emergency is declared to deal with that occurrence in terms of the State of Emergency Act” – in other words, Disaster Management Act for Covid, and State of Emergency for violence.
Until, of course, my colleague Dewald van Niekerk introduced the concept of “complex disasters” to me. This might provide the necessary justification to using the Disaster Management Act to help with the violence, if needed.
Many discussion around emergency legislation deal with the issue of the dangers that emergency legislation will be used for purposes other than dealing with the emergency. In this context, caution should be taken that regulations promulgated to deal with the spread of Covid under the Disaster Management Act not to be used for other purposes than dealing with Covid. So, if government is indeed going to use the Disaster Management Act to contain the violence, it would be prudent to state that the State of Disaster now deals with the specific violence (that must be carefully circumscribed) as well.
Should South Africa declare a State of Emergency for the violence and unrest we are experiencing now? In my opinion, not at the moment. But it might be necessary in the future.
Since we don’t really have guidelines on when it might be necessary, the European Court of Human Rights’ guidelines might be helpful. According to the court, a state of emergency can be declared if the threat is actual or imminent; it involves the whole nation, the continuance of the organised life of the nation is threatened, and normal measures are inadequate.
I don’t think that we are there yet. And if the government and ANC learn lessons from the past few days, it will use the conflict as an opportunity to get a political solution and to make the deep-seated changes in policy to ensure that we address the unacceptable inequality and poverty levels in this country.
Many South Africans still remember the 1980s and the state of emergencies declared with horror, where state of emergencies was used to stifle opposition against the laws and policies of the apartheid government. The current violence is a dangerous mixture of violence and politics in a nervous and gatvol society.
But, should the need arise for a state of emergency, the Constitution changed its brutality. It built-in safeguards to counter the abuse of human rights as seen under apartheid. With human rights protected, certain rights cannot be “derogated” or suspended during a state of emergency – including life, equality and dignity.
But, let’s work together not to get there.