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Use – or abuse – should act as warning

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The problem lies in the potential for abuse when there is the political will to thwart dissenting voices and clamp down on the opposition

THE POWERS THAT BE: A special session of the Constitutional Court to mark the retirement of Chief Justice Pius Langa, Justice Yvonne Mokgoro, Justice Kate Oregan and Justice Albie Sachs, as well as the earlier retirement of Justice Tholie Madala.South African high courts have the power, subject to confirmation by the Constitutional Court, to determine the validity of a state of emergency. Picture: Antoine de Ras

Any discussion of regulations that could enable a state of emergency to be declared under particular circumstances sends shivers down the spines of those who were on the receiving end of States of Emergency in the past.

As former Constitutional Court judge Albie Sachs, who had a hand in drafting our new constitution, told me this week: “The Defiance Campaign was suppressed by a state of emergency.”

Then, after Sharpeville, it was used for massive detentions without trial and the banning of the ANC and the PAC. PWBotha’s state of emergency in 1985 led to massive detentions and the suppression of the media.

When our democracy is firmly implanted, our institutions are functioning, and people have the right to vote, why are we even discussing such regulations?”

The reason the Department of Justice gives for drafting such regulations in a task team since 2016 is to enable the president to enact such a law in a timely manner if necessary, as it cannot be enforced without regulations in place to be considered.

This was the first time since the State of Emergency Act of 1997 was passed that specific regulations have been discussed.

According to Section 37 of the constitution, the president can declare a state of emergency in the case of war, invasion, insurrection, disorder, natural disaster or public emergency.

Such a declaration could be disapproved by Parliament and could not remain in effect for more than 21 days unless extended by Parliament. The high courts have the power, subject to confirmation by the Constitutional Court, to determine the validity of a state of emergency

What has stirred controversy this week is the fact that the SANDF discussed the Justice regulations in an October workshop.

The main concern is that the Justice regulations still need to be revised, as they had not been taken forward and the process had ground to a halt due to concerns about their constitutionality.

Ironically, the drafters of our constitution had been advised by outside legal experts not to include provisions for a state of emergency in the new constitution as it was reminiscent of English martial law. But, according to one of the drafters of the constitution, it was included so that Parliament could limit any such declaration.

The reality is that most countries in the southern African region have provisions in their constitutions for a state of emergency. The Angolan president can declare a state of emergency in consultation with the national assembly, as can the Namibian president, although it must be approved by parliament within 14 days.

In Tanzania, if the president declares a state of emergency the speaker of parliament must consult with the national assembly and decide whether to pass a resolution in support within 14 days, and it requires two-thirds support.

Zimbabwe’s 2013 constitution allows the president to declare a state of emergency in order to maintain public order, essential services, and to preserve peace, order and good governance. Summary arrest, detention, restriction of movement, and search and entry would be allowed in such circumstances if deemed in the public interest. A state of emergency could last for 14 days, after which it needs to be approved by parliament.

The problem lies in the potential for abuse when there is the political will to thwart dissenting voices and clamp down on the opposition.

There were concerns within the opposition in Zimbabwe in August 2016 that then president Robert Mugabe could have declared a state of emergency to stop violent protests. Given that Zanu-PF controlled a majority in parliament, there was always the prospect of parliament approving a state of emergency.

This was exactly what happened in Zambia in July this year. President Edgar Lungu declared a state of emergency, supposedly to “curb lawlessness”, and blamed the opposition for being behind a mysterious series of arson attacks. This transpired in a period when the president accused his political rivals of trying to overturn last year’s election results, which were narrowly lost by opposition leader Hakainde Hichilema.

Hichilema had been jailed in April and charged with treason after his convoy allegedly refused to give way to the president’s motorcade. Following charges of treason against Hichilema, the Zambian Conference of Catholic Bishops stated, “our country is now all, except in designation, a dictatorship, and if it is not yet we are not far from it”.

That was in April and in July, Zambia’s ruling party, the Patriotic Front, which controls a majority in parliament, approved the 90-day state of emergency. Opposition MPs boycotted the parliamentary vote, alleging that it was a government ploy to increase the president’s power after a disputed election.

Under the state of emergency laws, the Zambian police could prohibit public meetings, close roads, impose curfews, restrict movement, ban publications, detain without trial, and search without a warrant. According to media reports, President Lungu said: “If it means suspending human rights then we will suspend human rights,” and “If I become a dictator for once, bear with me.”

According to media reports the Home Affairs Minister Steven Kampyongo had said: “If it takes killing people to preserve the peace then so shall it be.”

Energy Minister David Mabumba had called for “terrorists to be killed like the US did with Osama bin Laden”.

If we are to learn lessons from our own region, it is imperative that we pay careful attention to exactly what our regulations enable our security forces to do in the event of a state of emergency, and to ensure they are in keeping with our constitution.

According to the media report by Erika Gibson in the Rapport this week, the draft regulations as they currently exist allow members of the security forces to use as much force as they deem necessary to restore law and order, as long as it is proportional.

Any meeting, even if not public, could be prohibited and no person may write, publish or broadcast something that could be threatening to somebody else. Any security official would have far-reaching powers to act within his/her judgement to arrest people, search property and cut communication channels, including cell phones and the internet.

Legal experts have described such powers as too vague and would not stand up in a court of law.