Responding to Covid-19: Emergency Laws and the Return to Government in South Africa

Abstract

South Africa's invocation of its Disaster Management Act in response to the outbreak of the novel Corona virus, Covid-19, presents a clear juncture in its contemporary Constitutional order. The ways in which power functions and the dynamics and signification it conveys are central to how the state is commanded and how law is communicated. Under the State of Disaster, an abnormality assumes dominance. The techniques of power that are mandated under the Act charges the Executive to directly confront Covid-19, the named enemy and scapegoat. The presence of both the normative Constitutional order and an exception, following Carl Schmitt, creates an uneasy synthesis. It requires the Executive to claim authority. Yet, with the Act invoked in terms of Constitution and thereby the people remaining sovereign, Executive power remains stunted. This study of South Africa’s response to Covid-19 highlights the unresolved tensions present when Constitutional democracies declare emergencies. The Disaster sees South Africa enter a situation whereby it is confronted with unprecedented legal and political challenges. Its response conjures existential questions regarding its political development and legal structures.

KEYWORDS:

• Covid-19
• constitutional order
• rule of law
• government
• governmentality

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 The World Bank defines governance and good governance as the “manner in which power is exercised in the management of a country’s economic and social development”; and “predictable, open, and enlightened policymaking”, respectively (World Bank 1994, vii). Good governance refers to a prescribed set of international characteristics which guide public institutions to behave in a manner that advances human rights and a liberal, democratic rule of law.

2 The WHO has launched a platform “to combat misinformation around Covid-19 … a global epidemic of misinformation – spreading rapidly through social media platforms and other outlets – poses a serious problem for public health. ‘We’re not just fighting an epidemic; we’re fighting an infodemic’, said WHO Director-General Tedros Adhanom Ghebreyesus” (Zarocostas 2020).

Additional information

Notes on contributors

Klaus Kotzé

Klaus Kotzé is an A. W. Mellon-University of Cape Town Postdoctoral Research Fellow at the Centre for Rhetoric Studies, Faculty of Law, University of Cape Town, Cape Town, South Africa