Your cart is empty!
19/05/2020 09:24:58
Picture: OUTA
Disaster Management Act requires urgent attention
The crisis we face in South Africa today in both curbing the Covid-19 pandemic as well as reducing the economic fallout, is being made worse by growing civil dissension and a lack of trust in government. The Organisation Undoing Tax Abuse (OUTA) believes this is partly due to a flawed Disaster Management Act (DMA) void of mechanisms to question or hold government to account when exercising its emergency powers.
OUTA is mindful that government’s efforts to contain the pandemic must be paramount in the disaster management actions taken, ensuring ultimately that human suffering and death is minimised. Equally important is the curtailment of an economic meltdown that will have an extremely devastating impact on everyone’s lives in one form or another.
Eight weeks into lockdown, citizen angst and frustration - driven by uncertainty, the lack of clarity and leadership accountability - is fast becoming a new dimension in the current crisis that South Africa can ill afford.
Whilst general consensus is that government leadership started out on the right track with the initial lockdown decision in March, much of the trust in government’s ability to manage and keep society on board is fast being eroded. OUTA believes this is due to a lack of transparency by government leadership on what informs their decision making, combined with the inability of the national assembly and society to question or hold government to account - especially when Government decisions and actions appear to be irrational or where they infringe on constitutional rights.
While government has the power to make new laws and regulations during disasters or emergency situations, civil society resistance will develop when there is a lack of trust in government. This will be made worse when there are limited or no mechanisms in place to question or hold government accountable in exercising its powers. This is imperative, even during emergency situations or disaster management. Sadly, the lack of transparency and accountability caused South Africans to question the motives and rationale of decisions forced on society and businesses.
OUTA and its legal advisors have studied Section 27 of the DMA, and our assessment reveals that it does not pass constitutional scrutiny. The DMA as it stands provides the minister of Cooperative Governance and Traditional Affairs (CoGTA) with unfettered powers and allows the minister more power than the constitution allows the president in a state of emergency. Furthermore, it affords the minister extensive legislative and other powers without any oversight by parliament.
“We believe that these unfettered powers and the lack of scrutiny or oversight by parliament has given rise to society’s inability to understand the rationale for government’s decisions on, for example, the various levels of lockdown, the containment of business activities and the curtailing of citizen activities. Basic human rights are being infringed, something that must be open to scrutiny in a democratic society,” says Stefanie Fick, OUTA’s Executive Director for Accountability.
Initially, the president announced a 21-day lockdown because of the declaration of a national disaster. Had parliament been involved in the process after those 21 days, this would have substantially mitigated our concerns. But the lockdown has since been extended, initially for another 14 days and now indefinitely. It accordingly appears almost certain that the minister can and will continue to use her unfettered power to unilaterally extend the declaration, and there is nothing in current law that stops her from doing so.
Accordingly, OUTA has written to the speaker of parliament and the president to urgently convene parliament to consider appropriate amendments to the DMA. In the interim, we call upon parliament to demand that the minister account to it. Parliament should be convened urgently to debate the regulations and directives that have been issued and the minister should be required to account to parliament and publicly answer questions posed by members of parliament.
It is imperative for the legislative arm of government to amend the DMA to ensure the same level of oversight and checks and balances afforded as would be the case when a state of emergency is declared.
We trust that our president and the members of parliament will agree with the need to address and remedy this gaping void in the DMA. We would also like to emphasise that our request or actions contemplated should in no way be construed as trying to usurp or detract from the necessary work required by government to contain Covid-19 and to keep our economy from collapsing.