A Passion to Understand

Sunday, 19 April 2020

COVID-19: State of Disaster in South Africa

I was very impressed with the South Africa response to the COVID-19 situation and the choice of President Cyril Ramaphosa to declare of a State of Disaster, not a State of Emergency as early as 15 March 2020 when there had not yet been any fatalities in South Africa. This article, written by Melodie Labuschaigne and Ciara Staunton, addresses this decision and the Constitutional ramifications thereof.

This article was first published on Verfassungsblog and is reproduced here under the Creative Commons license (CC BY NC ND) with due credit given to the original authors, Melodie Labuschaigne and Ciara Staunton.

As COVID-19 spread across the world, the first reported case in Africa was not until 27 February 2020 in Nigeria; six days later the South African National Institute of Communicable Diseases (NICD) confirmed the first case in South Africa. Since then, cases have increased steadily and the first death in South Africa was recorded on 27 March 2020. COVID-19 has shown its potential devastating impact elsewhere, but it is a particular cause for concern in South Africa.

First, while public health strategies such as social distancing and regular hand washing are encouraged, such strategies are a privilege many cannot afford in the crowded informal settlements that accounted for 13% of all households in 2016, many of which may not have access to running water. Second, the high rate of TB and HIV among the population, in addition to the number of those not on treatment for HIV, have led to concerns that this could impact the severity of COVID-19 in South Africa and make its population more susceptible to the virus. Third, while health systems in high income countries (HICs) are being stretched, most South Africans rely on the public health care system that is under-resourced and will struggle to meet the demand of the epidemic. While the virus does not discriminate on the basis of race, sex or borders, it is likely that it will disproportionately affect the poor and those suffering from other co-morbidities. Although the number of cases as of 15 March 2020 in South Africa remained relatively low in comparison to the rest of the world (61 confirmed cases; 0 deaths) President Cyril Ramaphosa stated that ‘urgent and drastic’ measures were necessary to limit the spread of the virus and address this ‘medical emergency’. As such, a State of Disaster was declared by the President on 15 March thereby giving Dr Nkosazana Dlamini Zuma, the Minister of Cooperative Governance and Traditional Affairs power to limit certain rights and freedoms within South Africa.

State of Disaster

A “State of Disaster” is distinct from a “State of Emergency” that can be declared by the President section 37 of the Constitution of South Africa and in terms of the State of Emergency Act 1997. In a State of Emergency, derogations from civil liberties protections under the Bill of Rights such as freedom of assembly are permitted, with some exceptions that include the rights to dignity, life and the right to a fair trial. The courts and parliament retain a supervisory role as the courts have the power to declare a State of Emergency invalid, and any extension of a State of Emergency beyond 21 days must be approved by parliament. A State of Disaster is a temporary measure in which certain rights (such as the rights discussed below) are limited and it may be declared invalid if the requirements for a declaration in s 27(1) of the Constitution are not met. The declaration of a State of Emergency must be necessary to restore peace and order, and as such, may not be the first step in addressing a health emergency, such as the spreading of a virus. Should the emergency escalate and lead to civil unrest, declaring a State of Emergency may be justified and it has not been ruled out.

The CEO of the South African Human Rights Commission, Tseliso Thipanyane, has argued that the measures introduced in fact amounts to a State of Emergency (a point echoed by others), but President Ramaphosa did not want to use that term due to its association with the days of apartheid. The Disaster Management Act 2002 also specifically includes a natural or human occurrence that causes or threatens to cause “death, injury or disease” within its definition of disaster, which would clearly apply to COVID-19, and this may also be why the President opted for a State of Disaster. Whatever the reason, for now the current situation has been designated a National State of Disaster.

Unlike a State of Emergency, the power to declare a State of Disaster is not expressly derived from the Constitution but rather under the Disaster Management Act 2002. Under the Act a National Disaster Management Centre must be established (in this case within the Department of Cooperative Governance and Traditional Affairs) which, amongst other duties, makes recommendations on draft legislation. The exercise of its powers and duties is subject to the direction of the Minister. It is however the national executive (i.e. the Cabinet) that is primarily responsible for coordination and management of the disaster. Regulations can only be made that assist and protect the public, provide relief to the public, protect property, prevent or combat disruption, or deal with disruptive or other effects of the disaster. Under this Act, a series of regulations restricting, amongst other things, the movement of persons, goods and the dissemination of information, were promulgated. These regulations include prohibiting foreign nationals from high risk countries (as defined by the WHO) from entering South Africa from 18 March 2020 and restricting gatherings to 100 individuals. A further series of restrictions, including a “lockdown” on the movement of its citizens from midnight on 26 March were announced on 23 March 2020.

In announcing these further restrictions, President Ramaphosa noted that COVID-19 is particularly dangerous for South Africa in light of the high levels of poverty, malnutrition and high rates of HIV and TB. At the time of the announcements South Africa had the highest number of cases in Africa albeit a low number relative to countries worldwide. The restrictions introduced were at that time the most stringent in Africa, as South Africa was then the only country on the African continent to require all of its citizens to remain at home. The measures announced on 15 March and 26 March represent the most comprehensive limitation on the freedom of movement and assembly of all South Africans since apartheid. A failure to adhere to these measures may result in a fine (unspecified), imprisonment of up to 6 months or both.

A State of Disaster lasts for 3 months (unless terminated by the Minister) and can be extended by the Minister one month at a time. There is, thus, no role for Parliament in the declaration, extension or termination of a State of Disaster. However, the Constitutional Court can set aside the declaration of a State of Disaster and it was challenged (and subsequently dismissed) on the grounds that the regulations are violating the rights of South Africans to human dignity, freedom of movement, freedom of trade, occupation and profession, and access to healthcare, food and water. Furthermore, unlike a State of Emergency, the regulations must conform to the Bill of Rights and a court can set aside any regulations that are considered to be an unjustified limitation on these rights under section 36(1) of the Constitution. Under the 2002 Act, parliament is not prohibited from meeting, but the COVID-19 regulations restricting gatherings in effect prevent parliament from meeting.

The COVID-19 regulations cover any array of measures considered to be necessary to prevent the spread of the virus, but the following are main limitations on the rights and freedoms:

1. Freedom of movement and assembly

The initial restrictions on movement pertained to entry into South Africa and the limitation of gatherings. Initially gatherings of no more than 100 individuals were permitted, but as of midnight 26 March, all gatherings including congregating for prayer is prohibited, with the exception of funerals that are restricted to 50 people. Foreign nationals from high risk countries were prevented from entering South Africa from 18 March. As of midnight on 26 March, all but essential movement is prohibited. The leaving of a residence is only permitted to buy essential goods, seek medical attention, buy medical products, collect social grants, attend a funeral of no more than 50 people, or access public transport for essential services during specified times. Leaving a house for exercise or to walk a dog is not permitted. Movement between provinces and districts is prohibited. Cumulatively, these measures go further than any restrictions on movement under the apartheid government.

Any individual who is suspected of having COVID-19 or has been in contact with a person who has tested positive for COVID-19 cannot refuse to consent to be tested. If the test is confirmed positive, they cannot refuse to submit to treatment, isolation or quarantine. Arguably, such measures are unnecessary as the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditionsgazetted in June 2017 under the National Health Act 2003 already make provision for the mandatory examination, treatment, isolation and quarantine. Under the 2017 regulations, such an application must be made to the High Court by the Head of a provincial department. The COVID-19 regulations, however, go further as a person who refuses to consent to testing or isolation can be quarantined for 48 hours while a warrant is sought. Section 36(1) of the Constitution requires a limitation of rights to be proportionate. The powers granted under the 2017 regulations appear to be suitable for COVID 19 and it is unclear why an extension of the powers was deemed necessary. Considering there have been no reported cases or indication that people will refuse testing, it is questionable whether this extension of powers is indeed a proportionate response.

2. Restrictions on movement of goods

As of midnight on 26 March, only essential goods may be sold. This includes any food and animal food products; cleaning and hygiene products; medical and hospital supplies; fuel, coal and gas, and basic goods, including airtime and electricity. The selling of alcohol and cigarettes are expressly prohibited. Price controls on certain goods have also been introduced, including toilet paper, hand sanitiser and some food products. Failure to comply can result in a fine, imprisonment of up to 6 months, or both.

3. Censorship

The South African Constitution guarantees freedom of expression and this includes “freedom of the press and other media” and “freedom to receive or impart information or ideas”, which are derogable rights. The COVID-19 regulations criminalise the intentional misrepresentation or publishing of a statement that a person or persons has/have COVID-19. The regulations also criminalise the publishing of a statement (including via social media) that intends to deceive another person about any measure taken by the government to address COVID-19. The focus is on disinformation and is aimed at preventing the spread of false cures that have been seen in the context of HIV. However, concerns have been expressed by the Committee to Protect Journalists that this may prompt other jurisdictions to adopt more oppressive press censorship. The risk of censorship that does not observe standards of necessity and proportionality in this time is that it may have the opposite effect and limit access to valuable and reliable information for public health. There is evidence within South Africa that this has already occurred as the Ministry of Health has stated that the dissemination of information is centralised to government, information requests by the press should be directed to the NICD and has it instructed other experts in South Africa not to talk to the press. Considering the NICD is currently overwhelmed, this has led to concerns that access to information has already been limited.

Enforcement of regulations

Under the 2002 Act, financial, human and other resources may be released and during his 23 March address, President Ramaphosa announced that he had directed the South African National Defence Force (SANDF) to be deployed to support the South African Police Service (SAPS). The SANDF are now patrolling the streets enforcing the lockdown. Already there have been allegations of the use of rubber bullets, as well as abuse, that have already led to calls for investigation.

Conclusion

This is the first time since the post-apartheid “New South Africa” that these basic freedoms have been limited. The limitations on rights are considerable and while recourse to the courts remains open, there is no compensation for loss or damage suffered as a results of these regulations. While these regulations apply to the COVID-19 crisis only, it is unclear when this epidemic will be deemed to have passed, and whether they may be used as a template for other public health emergencies which include the current TB and HIV epidemics. While such restrictions, particularly restrictions on movement, are harsh and can be followed in other HICs, it remains to be seen whether these restrictions will ultimately be a near impossible balance between restricting the spread of COVID-19, and depriving many in South Africa of their access to food, water and basic hygiene

SUGGESTED CITATION Labuschaigne, Melodie; Staunton, Ciara: COVID-19: State of Disaster in South Africa, VerfBlog, 2020/4/11, https://verfassungsblog.de/covid-19-state-of-disaster-in-south-africa/.

The Longest Road (2016): A Journey To Help Yazidi Refugees

In a world completely desensitised to images of violence and suffering, I suddenly realise that despite knowing about it, I haven’t seen much of what is actually going on in ISIS controlled territories. I’m watching The Longest Road, a documentary by Matthew Charles Hall and Jennifer Salcido, and a painter is showing his artwork to the camera. He has created incredibly detailed scenes of unimaginable horror and violence and somehow, perhaps because it has come from his memory and not a camera lens, it is all the more horrifying with the removal of that artificial barrier.

The Longest Road details the project that Matthew Charles Hall and Jennifer Salcido embarked on with a group of American veterans living on the other side of the world. Iraq War veteran Richard Campos had served in Iraq, trusting that he was working for the greater good without actually being able to see the fruits of his work. Now retired, he has committed himself to returning to Iraq and actually making a visible difference.

Gold Star father Kevin Graves joined him on his mission. Head of Some Gave All: The Joey Graves Foundation, he lost his son on a mission just outside of Baghdad. Desperate to see the land where his son paid the ultimate sacrifice, Kevin agreed to join Richard on his project.

What started as a basic mission to fund a hospital in Iraq turned into so much more when the team travelled to the frontlines and were able to witness the atrocities committed by ISIS. There they meet a Catholic nun and Dr Nemam Ghafouri, a Muslim heart surgeon, as well as scores of Kurdish and Yazidi refugees.

Filmed over a period of three years, on two continents and in four languages, The Longest Road documents encounters and conversations with individuals who have stared evil in the face and the efforts of the team to make the smallest difference in their lives. We witness the transformation that the team went through and the manner in which their project grew into a major humanitarian effort.

The Longest Road is incredibly powerful. For so long, politicians have hijacked the refugee crisis for their own means and the continuing atrocities in Syria and ISIS-controlled territories somewhat distract us from the fact that human beings, men, women and children, are suffering under appalling conditions in Kurdistan, Iraq and Syria. This documentary breaks through the disaster-fatigue to remind us that why we need to continue fighting. It couldn’t have come at a better time.

Screening

The Longest Road will have its UK and Europe premiere at the Dalston Rio in London on Saturday 18th February at noon. There will also be a Q&A afterwards with the directors and Dr Nemam Ghafouri, a medic who helped the American veterans in their mission to aid the two million refugees trapped in camps in Kurdistan and who is featured heavily in the film.

Facebook event – Eventbrite – Website

Trailer

Book Review: Islam and Democracy After the Arab Spring by John Esposito, Tamara Sonn & John Voll

In the aftermath of the Arab Spring and the descent into war in Syria, one question that arises time and again is this: is Islam compatible with democracy? It is a question that John Esposito, Tamara Sonn and John Voll promise to answer in their book Islam and Democracy After the Arab Spring.

It is difficult to review a book and to rate it when it clearly doesn't do what it promises to do on the cover and while this book has a lot to do with Islam and democracy, it has little to do with the Arab Spring (with the exception of the final two chapters). One of the questions that most interests me is the events leading up to the Arab Spring, some of which I attempted to explore in the series Before the Spring.

Events such as the Iraq war and the Second Intifada were pivotal in the development of a shared Arab consciousness that transcended national borders as was the rise of Al Jazeera and social media.

In focusing on countries such as Pakistan, Turkey, Iran and Senegal, I was hoping that Islam and Democracy After the Arab Spring would continue in a similar vein - picking up those similarities and exploring whether those countries were also ripe for a Spring-like uprising. Or at least exploring similar factors in the various countries that so emboldened the Arab Spring protestors to take action and topple governments.

It doesn't quite manage that but what this book does do is take an in-depth look at the rise of Islamic governments in seven countries and how issues such as equality, democratic participation and the economy were shaped by world events and the relationship of each country to outside forces.

The book includes a fascinating profile of Iran and the lasting impacts of US interference, such as in the 1953 coup. Likewise, the chapter on Turkey provides an insight into current political events and gives some background to Erdogan's political motives.

As a series of essays on the rise of Islamic governments, it would have been more accurate had the book been titled A Political History of Islam in the 20th Century. Judging it on that basis, it's quite interesting and the difference in writing styles between the various authors keeps it so.

As a resource further exploring the roots and enduring consequences of the Arab Spring, there are better volumes, such as Lin Noueihed and Alex Warren's The Battle for the Arab Spring.

Book Review: Voices from Chernobyl by Svetlana Alexievitch

I was 12 years old when the Chernobyl disaster happened and I remember being quite aware of the dangers of nuclear events - I'd learned about Hiroshima and Nagasaki and the enduring impact of the atomic bomb. Chernobyl was something else. It was a catastrophic and unprecedented disaster; we didn’t immediately know what the lasting effect would be but we knew that they were in trouble.

It was little surprise then when the years passed and we learned that Pripyat and surrounding areas had become ghost towns, areas that would be unfit for human habitation for another 10,000 years (or so estimates go).

But people do live there. They cut through fences and snuck past military patrols to resettle in their homes or to make new homes, surrounded only by the ghosts of the tens of thousands of people that once lived in those towns and the ever-present spectre of radiation.

Svetlana Alexievitch, Belarusian investigative journalist and winner of the Nobel Prize in Literature in 2015, spoke to those people and indeed, to people from all walks of life who were effected by Chernobyl. She spoke to widows and survivors, liquidators, contractors and military reservists who were called to Chernobyl in the days after the disaster. She spoke to families who had been evacuated from Pripyat and surrounding areas, to those who returned and to those who fled the war in Tajikistan to settle there because they had nowhere else to go.

Voices from Chernobyl: The Oral History of a Nuclear Disaster reads like a dystopian novel, or perhaps a post-apocalyptic survival story. First published in Russian in 1997 and expertly translated by Keith Gessen, Voices from Chernobyl is the fruit of hundreds of interviews that Alexievitch obtained over a three year period. It is an incredible and page-turning volume with accounts as fascinating as they are obscene.

It’s difficult to put into words how much of an impact this book has on the reader and any attempt will be nowhere near as eloquent as the accounts themselves. The lack of understanding of the dangers that people faced, coupled with a massive campaign of disinformation is perhaps most notable. In the aftermath of Chernobyl, they sent cranes from East Germany and robots intended for the Russian Mars exploration. Even robots from Japan made it to the site but the radiation interfered with all their workings and so they resorted to sending human beings in rubber suits instead.

There were 340,000 personnel despatched to Chernobyl but those working on the roof of the reactor got it the worst. They were wearing lead vests but the radiation came through their boots.

Despite the massive loss of life and how many disaster personnel succumbed to radiation poisoning or ‘Chernobyl cancer’ that took years to emerge and yet more years to eventually kill them, many of the interviewees displayed a nostalgia for the Soviet era and for the heroism of a bygone era. Time after time, interviewees would explain that they did not know the danger but they would have responded in the same way even if they had. It was their duty and they would have fulfilled it.

And then, throughout the book is the ever-present reminder that the Chernobyl disaster happened to a population less than 50 years after the Second World War.

Gulag, Auschwitz, Chernobyl. One generation saw it all.

What impressed me the most is that many of these people survived the Leningrad blockade only to suffer devastation again in Chernobyl. They spoke of the terrible winters during the blockade where people froze to death on the streets and one man mentioned, perhaps in jest, burning his belt so that the smell could stay his hunger.

Voices of Chernobyl is a study in the various shades of trauma. Some interviewees expressed that they couldn’t talk about the blockade, it was too traumatic, but Chernobyl they could talk about. Despite the catastrophic loss of life and livelihood, the events of Chernobyl still felt less traumatic to many of them than the blockade.

I cannot recommend Voices from Chernobyl enough and was so impressed that I have ordered Alexievitch’s latest book Secondhand Time: The Last of the Soviets which was shortlisted for the 2016 Bailie Gifford prize for non-fiction.

Book Review: The Chibok Girls by Helon Habila

On the evening of 14-15 April 2014, Boko Haram militants kidnapped 276 female students from the Government Secondary School in Chibok, Borno State, Nigeria. The girls became known the world over as the 'Chibok Girls' yet surprisingly little is known about who they are, what their families are going through or the context in which this crime occurred. To date, in December 2016, almost 200 of the original abductees remains missing and the little that we do know is that their lives with Boko Haram are ones of untold horror, violence and sexual slavery.

Helon Habila is a Nigerian born author and professor of creative writing at George Mason University, Washington, D.C. In early 2016, he returned to Nigeria to take a road trip to Maiduguri and Chibok to speak to people not only about the events on that fateful evening in 2014, but about the long wait for the girls to return home and the present climate of war and strife in the region.

Habila has produced a chronicle of his time in Nigeria in the short but incredibly insightful The Chibok Girls: The Boko Haram Kidnappings and Islamist Militancy in Nigeria.

The book begins with accounts of the events of 14 April 2014 from parents and relatives of the girls who were taken and those that escaped. The residents of Chibok had received warnings that the town would be targeted that day and they had every reason to believe it. Massacres, assassinations and terrorist attacks have become ever more prevalent in what locals have begun to call the war with Boko Haram.

Just 9 months before the abduction of the girls from Chibok, Boko Haram militants entered a secondary school in Mamudo, Yobe State and killed 42 people, most of them students.

After spending time in Chibok, Habila moves on to Maiduguri and the heart of Boko Haram territory. He speaks of the effects of the civil war and how a divide was created between Christians and Muslims as successive governments misused state resources, culminating in the declaration of Sharia law in the area in 1999. Perhaps most chilling is the description of the rise of Boko Haram from a modest force to one to be reckoned with following the Boko Haram uprising in June / July 2009.

Moving back to Chibok, Habila collects yet more first-hand accounts of the fears and devastation of a community who have lost their daughters, sisters and friends.

Woven throughout the book is the story of the girls and the accounts of those who have escaped. Perhaps to be expected with the youth of the girls and the horrors that they experienced, there is very little in the book about their time with Boko Haram. Indeed, with so few escapees (and being that the book was in production at the time 21 girls were released in October 2016), we are but depending on the narratives of a handful of very traumatised girls.

Confronted with their reticence in the face on ongoing questions about their experiences, Habila notes the following:

Hauwa, Ladi, and Juliana were ordinary girls, young enough to be my daughter, who had been raised to almost mythic status by their extraordinary experience – Helon Habila, The Chibok Girls

Insightful, powerful and intimate, The Chibok Girls: The Boko Haram Kidnappings and Islamist Militancy in Nigeria is highly recommended for those interested in gaining a more in-depth perspective of the lives and people effected by Boko Haram activities.

The book is out in the States and will be released in the UK on 15 December 2016.