The global Covid pandemic not only increased interest in the field of disaster risk management, but in several instances required the use and implementation of emergency laws. South Africa was no exception.
At the beginning of the pandemic it was clear that normal laws and regulations were insufficient to cope with the disaster. For the first time since the promulgation of the Disaster Management Act 2002, a national state of disaster It was declared to manage and mitigate potential risks and consequences. Extraordinary measures were needed and the national state of disaster became the vehicle through which the government exercised exceptional powers to slow the spread of the pandemic. The measures included the initial restriction of movement, curfews, use of masks and a limitation of meetings.
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We offer some reflections on this as members of a team created by the government to assess the state’s response to the pandemic.
We suggest that the country still needs some health regulations, but instead they can be implemented in terms of the National Health Law.
States of exception
The law, in general, provides for the “state of exceptions”, situations in which normal laws cannot regulate an exceptional event. These laws usually authorize the limitation, in some cases even the repeal, of the rights to manage the situation.
Such laws allow the drastic limitation of specific rights. Because the balance of power shifts toward the executive to take swift unitary action, there are clear limitations to this power, both in terms of what can be done and how long it lasts.
Citizens must always be vigilant that exceptional powers do not become permanent and that powers are not used to achieve other objectives. Nor is it sustainable to govern for extended periods in exceptional circumstances as permitted by emergency legislation.
South Africa has the State of emergency law and the Disaster Management Law. These two laws govern two different sets of exceptional circumstances. A state of emergency can only be declared when there is a threat to the life of the nation. That is why the government chose the Disaster Management Act to deal with the pandemic in South Africa.
The Disaster Management Law
The Disaster Management Law defines a disaster as an extraordinary event that has a significant impact on human beings and the environment and exceeds the ability of those affected to deal with the situation adequately using their own resources.
As the pandemic unfolded globally, the government quickly realized that extraordinary measures were needed, which were very urgent. The Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, declared a state of disaster on March 15, 2020.
The declaration of a state of disaster must follow a prescribed process. Once an event that may be a “disaster” occurs, the National Center for Disaster Management is responsible for classifying the event as a local, provincial or national disaster. This is done to determine which level of government is responsible for coordination and management. In the event of a national disaster, the national executive is primarily responsible.
Once classified as a national disaster, the Minister of Cooperative Governance and Traditional Affairs may declare a national state of disaster if existing laws or other arrangements do not adequately provide for the executive to deal with the disaster (or if other exceptional circumstances justify it ).
Once a national state of disaster is declared, the national executive can issue regulations or directions to deal with him. A national disaster declaration expires after three months, but the minister can extend it one month at a time. There is no limit to the number of extensions, but it can only be extended if there is still a disaster.
Renewing the state of disaster
Courts can review the declaration and extent of the state of disaster, through the principle of Rule of law of the constitution, under the Law for the Promotion of Administrative Justice, or against any of the Fundamental rights in the constitution.
Likewise, the National Assembly must supervise and supervise the executive function. The constitution has specific mechanisms to ensure such supervision.
Members of the executive remain individually and collectively accountable to parliament. Whether this happened or whether it is effective is open to debate, and can be reviewed in the courts, but the fact is that the Disaster Management Act does not prevent parliament or the courts from performing their ordinary functions.
The Disaster Management Law only applies when other legislation is inadequate. So is there other legislation the government could have used to manage Covid-19? The National Health LawFor example, it already provides for regulation and quarantine for certain notifiable medical conditions. Coronavirus is a notifiable medical condition.
The pandemic brought a lot of uncertainty. And the National Health Law focuses on the health system and health services. So, the National Health Law probably would not have been able to create the regulations that were needed in March 2020. In that sense, the national legislation did not adequately address the disaster.
But things have changed.
Get out of the current state of disaster
Over the past 20 months, a lot has been learned about the pandemic and what it takes to control it. You don’t need to act so fast now.
That does not mean that one can simply come out of the state of disaster. Current regulations, from disinfecting and wearing masks to curfew and restricting the number of people in gatherings, are carried out under regulations that depend on a state of disaster being declared. If the state of disaster is not extended, the entire complex web of regulations will cease to be law and there will be very few regulations to handle the pandemic.
To address this unsustainable situation, the Minister of Health must issue regulations under the National Health Law to regulate matters such as the use of masks, social distancing, meetings and vaccinations. The proposed regulations must be published in the Official Government Gazette at least three months before they begin, and this can be circumvented “if circumstances require it.”
Avoid disaster states in the future
Longer-term planning for future pandemics includes the Department of Health institutionalizing disaster risk management. The big lesson learned from Covid-19 is that the Disaster Management Act and the National Disaster Management Framework require disaster risk reduction planning to be implemented in all ministries, all the time.
This will reduce the risks in the event of a dangerous event, which in turn means that ordinary legislation could cope with its management, reducing dependence on states of disaster that are declared in the future.