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THE POST-STATE OF DISASTER HEALTH REGULATIONS: BEWARE THE "IDES OF DESPOTIC POWER"

    The eminent promulgation of regulations to manage conditions of epidemics and pandemics without the necessity of declaring a national state of disaster has evoked many an emotion in society. Whilst these regulations are published for public comment with the possibility of them being amended to accommodate society's perspectives, the intent of government on this aspect is represented by its initial thoughts on how to regulate society. We now know what is in the mind of the state about us, on this specific issue. Comments on these regulations will be based on what is proffered as a departure point.  There is no likelihood of working from a clean slate, but the given slate is the thesis with which we can synthesize or antithesize. 

Being law, these regulations are more about the legality of what the government intends to do to enforce what they have agreed is the public health intervention required to deal with the pandemic. At the level of regulations in terms of the health act, the disaster targeted posture of the proposed regulations will be at variance with the rights of citizens guaranteed by the Constitution. The introduction of law enforcement officers to act on suspicion of a health condition, including the arbitrary power to quarantine as well as to disperse gatherings has trappings of health scare driven martial law. 


The very fact that the regulations are occasioned by a pandemic whose basis is still scientifically or otherwise contested should be worrisome enough to procure caution from a constitutional democracy such as ours. The two years within which South Africa was 'ruled' through 'regulations', and the capacity of society to demand accountability being reduced should not be allowed to be curated as health scare regulations with which decrees are legitimized. The normative underpinnings of these regulations seem to be etched in the institutionalized intents of the interests which the vaccine producer complex has in South Africa, as a market. The quest for the permanence of the state of disaster regulations as a health outcomes management necessity introduces the abolition of the inviolability of law, a chief characteristic of a dictatorship. 


The pandemic brought back to South Africa a context wherein state apparatuses that were inherently established to pursue a rule by law type of government, the power to act according to discretion for the 'public good'. The paternal power that these regulations procure for the state over its citizens, under the guise of health scares, will create a grey area between the noble intents to curb infectiousness and the arrival of despotic power over citizens by organs of state. Readout of the context of state power abuse, these regulations might give an impression that they represent material justice and can therefore dispense through formal justice. The allocation of power to decide on the sovereign individual's rights to make personal health decisions to 'organs of state' and 'professionals' creates jurisdiction over a right-based jurisdiction already guaranteed by the Constitution. It would be the political elements subsumed into the legalistic posture of the regulations that will remove the presumption of jurisdiction the Constitution has already put in place as the normative of our democracy.


It is my submission that these regulations are more about the enlargement of the scope of discretion the government wants without having to declare a state of national disaster. The power that these regulations will have over gatherings might be abused to limit free political activity, including freedom of assembly. In a context where pandemics and epidemics require a state of national disaster to be declared, jurisdiction over the reasons for the disaster has a time frame and can be curated into a legislative and regulatory framework dealing with the nature of the disaster.  As we have observed, the little discretionary power COVID19 gave to the National Coronavirus Command Council almost created a rule by decree save for the fact that the Constitutional Court became an arbiter of final instance to regulate to the omnipresence of dictatorship as a trait in the political of ant society. CUT!!!


🤷🏿‍♂️A ndzo ti vulavulela

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