In his contribution to the
theory of dictatorship, Ernst Fraenkel, a NAZI Germany’s era legal mind
introduces the concept of duality in a previously troubled State. He introduces
the concepts of a Normative State, which he explains as one where the rule of law regulates the allocative power of the state through its primary agent,
government-as-a-politics-bureaucracy-complex; and a Prerogative State which he
explains as one wherein the unlimited arbitrariness of those in leadership of
the state assumes the role of being its primary agent in the exercise of the
allocative power of the State through its machinery, a
in-government-bureaucracy. He submits in his rendition that these conditions
have a capacity to co-exist in a democracy that is en-route to a dictatorship
by a particularized elite group in society.
He argues that in conditions
that resemble a post-1929 Great Depression-era and a pre-Second World War
Germany, the likelihood of a dictatorship concretizing at the altar of
post-economic depression economic recovery necessity and ‘national interest’ defence
and protection is real. In his thesis, he submits that such a dictatorship occur within
a legal framework and thus could easily be undetected as it utilizes the law
to justify its right of existence. When such a dictatorship settles, it
generally rides a wave of a craftily manufactured benevolent leader or
leadership which is often presented to society as a panacea to its immediate past
and propaganda ‘foregrounded’ problems.
In South Africa, such problems have in the aftermath of a 1948 National Party
electoral victory has been the ‘rooi and later swart gevaar‘ and its later post-
apartheid adjunct ‘The State Capture’ narrative that competes for ideational
dominance with ‘the dangers of Radical Economic Transformation’.
Conditions such as the ones
sketched above require a martial law type of context in order to carry society
along as you dispense intervention measures. Whereas martial law is explained
as ‘the exercise of government and control by military authorities over the
civilian population of a designated territory, its application on society could
also be occasioned without necessarily deploying the traditional military
ritual. The police might be an instrument of martial law. It is actually the
martial character of the intervention a state adopts that instructs the degree
to which society will be regulated throughout an emergency and/or disaster. The
COVID19 pandemic disaster has attracted a myriad of responses from governments all
over the world. Its basic demand for containment and prevention procured as a
first response to the lockdown of societies in order to give the public health
system an opportunity to ready itself for its projected infection rates.
Governments had at their
disposal a series of mechanisms to apply over the citizenry in enforcing the
basic of public health response to a pandemic of COVID19 nature and character.
Depending on the legal and constitutional framework governing a country the
continuum of the ‘martial’ nature of intervention had at both extremes, the state of emergency and a
legislative provision. In a state of emergency the reliance on ‘emergency
decrees’ would be the context of control and governance; whilst in a legislated
dispensation regulations that are subject to the legislation making process and
reach of the judiciary become the context within which the martial character of
interventions is exercised. What is of
interest is that in a martial context, either by emergency decree or
regulations within an active constitutional framework, the ‘political sphere’
of the public might be removed, deliberately or consequential, from the
jurisdiction of the general law. In a martial context the political
administrative might lose justice as a basic principle, and have it easily
replaced by the application of law in the light of the circumstances pertaining
to the demands of disaster response.
In a vortex of creating
conditions to mitigate the risks of a pandemic, notwithstanding the democratic
nature and traditions of a society, the political sphere, normally embodied in
the person of leadership at the time of pandemic occurrence, tend to be
vulnerable to the increased space of arbitrariness that comes with how dominant
officials such as a state president exercise the discretionary prerogatives
accompanying the executive powers vested in him/her. It is this arbitrariness
space and discretionary prerogatives the dominant in the political sphere have,
that the concept of a prerogative state finds expression in a society dealing
with an emergency. A dependency on the benevolence of political incumbents is
in such conditions, an insurance policy a society would have taken at a time
when they elected them into power. Regulations that develop into the social
co-ordinates within which society has to operate during a pandemic become the
indicator of the extent to which a political elite has a propensity to develop
into a dictatorship form. In a socioeconomically contested democracy like that
of South Africa, generally expressed in the demographic nature of wealth and
access to services, including the social distance that has been growing between
the country’s political leadership and society, COVID19 response will receive most
attention in the realm of how leadership exercises an otherwise necessary
discretionary prerogative.
Parallel to the COVID19
response, the political sphere of the country had also gone through one of its
most consequential reviews, given the change of leadership at the governing
party’s elective conference of 2017, and the 2019 National Elections that were
characterised as an endorsement of the person of the ANC President that that of
the ANC itself. The ascendance of ideational dominance by the private sector
and capital at the centre of government represented an ideological consequence
whose impact got felt in the COVID19 response architecture of the State, as it particularised
private sector contribution as a dominant foreground in the artwork of
response. The legal revolution within the governing party at the altar of
contracting the ‘trust deficit’ between the dominant political elite led by the
ANC, the cognitive elite led by the
academic-media-thinktank-civil-society-complexes, and the
business-foreign-investor-complexes amounted to a coup of the socioeconomic
transformation agenda trapped in the restitutive quicksand that instructed the
Radical Economic Transformation paradigm of a pre-2017 political economic climate.
In the consolidation of the post-2017 political economic climate, the
ideational coup leaders at various centres characterising these complexes, and quintessentially
liberal, and inclusive of the traditional opposition to the ANC, went about a
process of making the state machinery an autonomous institution of leadership
for their ideological intents. With the government as an agency of the state, the
coup leaders; promoted the rule of law in so far as it does not infringe on the
rights of the economic status quo to continue to save for it being inclusive in
its new character; used the context of corruption and state capture to choke
any discourse on radical economic transformation, it is the radicality of the the transformation that got the focus of almost all allowed ideation in the public
space; and maintaining the narrative of constitutional democracy as the ultimate
assurance of a non-racial South Africa with equal opportunities that do not guarantee
equal outcomes. In this sophisticated context, and almost in a panache designed
to reverse the Marxist slogan of the dictatorship of the proletariat, with the dictatorship of institutions for and/or by complexes of the elite, a
dictatorship form was in the making, and COVID19 may have provided it with an unconstrained
legal space.
A
dictatorship is in facile terms explained as an arrangement in and/or for and/or
by society to have a government characterized by a single leader and/or group
of leaders and/or an elite type, with little or no toleration for political
pluralism or independent programs or media. It requires a context wherein a
society if put in a kind of an emergency to be led out of for it to easily
settle in. The pressure to find a solution to a national problem tends to
create in society a preparedness to abrogate the responsibilities of thought
leadership to those that dominate the discourse space in support of the
‘apparent’ ‘leadership’ emerging.
The commonly observed
attributes of a dictatorship include but not limited to; a systematic process
to control and/or intimidate the media or dissenting opinions; building an
official pro-establishment media network that obfuscates any possibility of an
alternative; building effective government surveillance to a level where the
outspoken in society speak in parables to address anomalies or a general fear
to just speak your opinion across electronic mediums for fear of being tapped;
attuning State resources to reward corporate backers of the establishment to a
level where citizen voices are limited to voting only; managing the judiciary
and stacking it with legal minds attuned to an agenda of the establishment;
applying the law, through a prosecution system designed to advance an
establishment’s agenda, to benefit the accumulation intents of an elite form;
and, demonizing anyone opposing the emerging system, this is generally through
dragging into a manufactured mud those that threaten the dictatorship. Unlike the traditional
dictatorships that come through a military insurrection or coup, these new
dictatorship forms could be elected into power and/or could be in control of
the strategic power centres that deploy into the State apparatuses.
WHAT OF COVID19 IN SOUTH
AFRICA
The ‘state of disaster’ in
South Africa as occasioned by the COVID19 Pandemic has characteristics of a war
situation and thus calls for extraordinary measures in the areas of governance,
socio-economic and political-economic response. It is common knowledge that
COVID19 befell South Africa at a time when a pro-private sector and capital
inspired, arguably a Neo-liberal’, the coalition had just taken decisive control of
the predominant political formation, the African National Congress. COVID19
thus occurs at a time when a consolidation of a post-apartheid cognitive elite
and an apartheid-era economic elite had just been rewarded by the ultimate
prize of politics, government. It also occurs at a time when the global
economic right has consolidated its hold of the economic commanding heights,
with no sight of left thinking by the dominant powers. It also occurs when the
socioeconomic redress tool of radical economic transformation agenda which had
unfortunately been muddied in the vortex of State Capture is at the zenith of
its retreat in ideological terms. It occurs at a time when a new governance
order has been able to ‘purchase’ its space in the heart of the context that
defines the policy heartbeat of the country, the National Executive Committee
of the ANC and its adjuncts, also referred to as alliance partners.
The COVID19 intervention
demands of containment and prevention which are lockdowns and basic hygiene
require a ‘state of disaster’ context that limits all uncontrollable human
interaction. Such interactions include political gatherings, the trading places
for interests that are a currency for all political market places with society citizens as commodities that define profits for the political endeavour.
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