Govt should’ve considered social impact of regulations – Madonsela for Scopra

Professor Thuli Madonsela, as part of the Social Justice and Covid-19 Policy and Relief Monitoring Alliance (Scopra), has highlighted shortfalls in the implementation of the Disaster Management Act (DMA) during the Covid-19 pandemic.

Following the High Court judgment which declared some Covid-19 regulations unconstitutional and invalid, handed down by Judge Norman Davis, the panel sent a policy brief to the presidency, outlining how government can move forward to properly implement the DMA.

The panel also highlighted a lack of communication on the reasons behind certain regulations as well as a deviation from the Act by government.

In the letter, penned by Madonsela, on behalf of the panel, she said there were both strengths and weaknesses in the judgment but given the impact the judgment could have on government efforts, she said government made the right choice to appeal it.

Disaster Management Act

The panel drew lessons from the judgment on how best the DMA could be implemented.

“The Act at the time of promulgation was hailed internationally as a forward-thinking new generation of laws. But the implementation of the Act seems to be severely lacking,” Madonsela said.

“The Act, therefore, foresees a decentralisation of powers, to avoid a situation where the power of the executive is concentrated in one person.

“We are concerned that poor implementation of this Act is leading to haphazard and confusing executive driven structures that run parallel to the Act,” Madonsela added.

Impact of regulations

Madonsela explained that interventions to mitigate the risk of Covid-19 have had a serious impact on human rights and the rule of law and their alignment with the Constitution.

In future, regulations must undergo a “constitutional and related social justice predictive impact analysis before approval” – highlighted in Davis’ judgment, she said.

She added that government should have conducted this evaluative exercise to understand the impact of regulations on human rights and whether the impact can be justified.

“The state should do this before making laws, and not only once it is called to account in the courts.

“This means that before promulgating regulations which impact on individuals’ rights, the government should have conducted an evaluative exercise, to determine the impact and take appropriate steps to mitigate that impact,” Madonsela said.

She added, “If it has not done so, it will not be able to place the appropriate evidence before the Court as to why it is considered reasonable in pursuit of a policy or is a justifiable limitation of a constitutional right”.

While rights may be limited, especially during Covid-19, for example, the right of movement or the right to privacy for tracing reasons, there must be a balance and it must justifiable in terms of the Constitution, Madonsela explained.

When considering the impact on human rights, there should be a strong focus on the “unequal impact of the regulations on those who are already disadvantaged in South African society,” she said.

“The Covid-19 pandemic has exposed and exacerbated existing inequalities in South Africa, and in formulating and implementing lockdown regulations, and the subsequent easing of lockdown, the impact on the right to equality, understood in a substantive sense, should be at the centre of the evaluative exercise.”

While Davis’ judgment may be flawed, according to Madonsela, it does contain “wisdom” on the duty by government to conduct a human rights impact assessment before implementing laws or policies.

Rationality

In order to judge whether regulations are rational, reasonable and proportional, the reasons behind them must be known, Madonsela said.

However, she maintained that there was a lack of communication from decision-makers in this regard.

“This also speaks to the principle of open government. While the government is increasingly providing the information, also in court documents, there is a severe lack of communication of the information on which decisions are based.”

This, she added, makes accountability impossible and hinders public trust in government – vital for combating Covid-19.

Intergovernmental committee

Madonsela and her team expressed concern that while the Act requires that the president establish an intergovernmental committee on disaster management, this has seemingly not been done.

“Each Disaster Management Centre is responsible for establishing a Disaster Management Advisory Forum which aims to bring together many stakeholders from within government, the private sector, NGOs, and academia. This advisory forum is also absent from the public management of the Covid crisis.”

“The Act also places an extraordinary amount of powers in the hands of a single Minister once a state of disaster is declared. The De Beer judgment also expresses its concern in this regard,” she said.

This has lead to a top-down enforcement of rules and regulations with little oversight built into the Act, Madonsela said.

She urged government to understand that their response to Covid-19 is not only a response to the economy, but also “to health and social cohesion that includes the advancement and preservation of all human rights for all”.

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