Lockdown has exposed the fallacy of South Africa’s democracy

Too many middle-class South Africans are like a flock of sheep, while the mass of poor people are so disempowered that they resort to violent protest and general law breaking to manifest their frustrations at government failure and corruption.

The human rights abuses by law enforcement officials are not surprising either; they happen routinely without lockdown.

But the deployment of the military, which was studiously avoided by earlier democratic governments. People asked me to try and get army patrols because of police complicity, but the government was adamant.

It even tried to demilitarise the police. All that was to change with Polokwane.

The authoritarianism in the regulations put in place to deal with the Covid-19 coronavirus are the latest manifestation of a growing trend in governance, marked by a culture of secrecy and extensive powers given to ministers. This is not surprising, since many parliamentarians and executive members supported the passing of the notorious Protection of State Information Bill in 2013.

From their conduct and utterances, some apparatchiks would serve with distinction in totalitarian regimes. The “new” regime is looking suspiciously like the old, except that the deep divisions in society are based on class and not on race.

The National Security Council, established by President Cyril Ramaphosa in February, sounds suspiciously like apartheid’s State Security Council, and legislation increasing the powers of authoritarian traditional leaders would do the old regime proud.

The militaristic language of the media statement issued by KwaZulu-Natal Premier Sihle Zikalala April 19 sounded like a declaration of martial law.

In the early 2000s, government refused to deploy soldiers for civilian policing when rural communities beset by violence begged for army patrols.

The Covid-19 lockdown provisions, some of which have no place in a truly democratic society, may well be a sign of things to come unless South Africans pay attention and find ways to stop this disturbing trend in its tracks.

It has become increasingly difficult to obtain information from government departments, and even Promotion of Access to Information Act applications may need the threat of court action to produce results.

Simultaneously, corruption in government has grown exponentially. Looting in the once financially stable eThekwini Metropolitan Municipality has necessitated its borrowing R1 billion, while opacity in governance has increased following the passing of a controversial “secrecy” by-law limiting media and public participation in some meetings in 2017, with a further unsuccessful attempt by the mayor in August 2019 to limit media reporting.

Given this context, moves by ministers to appropriate more powers for themselves should be ringing alarm bells. Take, for example, the planned takeover of some of the functions of school governing bodies by the inept basic education department via the Basic Education Laws Amendment Bill and the autocratic threats to discipline teachers who refuse to teach a highly controversial sex education programme, which was rejected by many parents.

Of all the pending sloppy legislation, the National Health Insurance Bill demonstrates how badly power has gone to politicians’ heads.

The minister of the seriously dysfunctional health department controls all its operations through appointments that s/he makes, including to bodies which supposedly provide independent oversight of health services. The bill’s vague wording in places gives the minister carte blanche, including in decisions about the powers of national versus provincial competencies; the type of information users will be obliged to provide; and who the minister can give that information to – raising serious concerns about privacy.

As if all this power concentrated in one pair of hands is not bad enough, the minister also appoints an appeals tribunal with high court powers, without any recourse to appeal decisions.

The powers granted to ministers in pending legislation relating to land and mining are alarming, and puerile attempts them justify it in terms of black empowerment are nauseatingly hypocritical.

A prime example is the Draft Constitution Eighteenth Amendment Bill, which allows for land expropriation without compensation. The land restitution process has been riddled with gross corruption, bypassing many deserving claimants in favour of well-connected opportunists, while the rights of poor rural residents have become increasingly threatened.

There has been a rush of legislation designed to facilitate mining and the empowerment of the elites without adequate time for consultation and comment. While public attention was diverted, the Mineral Resources and Energy Minister Gwede Mantashe published, on the first day of the lockdown, amended regulations to the Mineral and Petroleum Resources Development Act, which ignored submissions and stripped communities of their land rights.

The Draft Upstream Petroleum Resources Development Bill was sneakily gazetted on December 24 2019, and no copy posted on the parliamentary website despite the deadline for comments being the third week of February. This bill represents an extremely serious threat to the rights of people living on land targeted by mining interests.

The apartheid government removed people from their land for its ideological-cum-economic interests, and the present government allows removals for mining activities which only benefit the elite.

Traditional leaders are among those benefitting, and it is in the recent Bantustan Bills that the same apartheid-type agenda is manifested.

The Khoisan and Traditional Leaders Act, already signed into law, increases the power of these leaders to conclude business arrangements detrimental to those affected.

The Traditional Courts Bill is currently before the National Council of Provinces. There is little difference between this legislation and that which it replaces, a section of the Black Administration Act of 1927. If anything, the bill gives leaders even more power than the previous racist regimes deemed good for black people.

Historically, there courts heard civil cases in terms of some illusionary customary law. Now their powers are extended to hear certain criminal cases, the details of which are not spelt out in the legislation.

Like her predecessor, Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma exercises full power about the nature of crimes included and their punishment, which she will publish in government gazettes and which are inaccessible to those at the receiving end of the “justice” meted out by traditional leaders, some of whom engage in criminal activities with impunity.

Like apartheid, these political concessions to traditional leaders incorrectly use the abused term “culture” as justification, but they are racial – not only are they are applied only to black people, but their application is not voluntary, as our supposedly democratic Parliament has not allowed rural people to opt out of this feudal system.

While people accept the necessity of regulations relating to issues such as social distancing, the lockdown was badly planned since it failed to factor in the reliance of a large sector of the population on the informal sector and piecemeal work.

Hunger has escalated, together with anger at corrupt councillors stealing food from the poor. It is not inconceivable that more poor people will die of poverty-related illnesses than of Covid-19, especially if they cannot face taking HIV and tuberculosis medication without food.

The government has no right to decree what legal products people may purchase to consume in the privacy of their homes or to stop them walking on the street. Neither can its measures be justified in terms of links between trauma and violence, since it is state organs that fail to police taverns and roads properly, as happens in other democracies where governments would not dare incur the wrath of citizens by imposing such ridiculous bans.

In South Africa, many simply break the law, depriving the state of desperately needed revenue, which further feeds avaricious organised crime networks, such as those politically well-connected operators described in Jacques Pauw’s book The President’s Keepers.

This lockdown has exposed the fallacy that South Africa is a real democracy, and the one lesson everyone should learn from it is that we will never build a democracy if we allow this increasingly blatant authoritarianism to continue.

*Mary De Haas is an Honorary Research Associate in the School of Law, UKZN, and amember of the recently launched Navi Pillay Research Group which has a focus onjustice and human rights. 

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