Covid-19, Rule of Law and Human Rights in South Africa

By: Maria Goyayi

The COVID-19 pandemic is a disruptive moment in our time. The pandemic has shaken the very foundations of our societies, exposing the inequalities and weaknesses especially in our health and social security systems. In order to manage the pandemic, nations had to undertake a number of disruptive actions including lockdowns and social distancing.

In South Africa (SA), the COVID-19 patient zero was confirmed on 5^th March 2020 forcing the nation using the Disaster Management Act (2002) to declare a state of National Disaster.  The act allowed the government to establish the National Command Council of Cabinet Ministers to oversee the management of the pandemic. Additionally, it permits the restrictions of certain rights as seen necessary to prevent COVID-19 transmission and flatten the curve. By 27^th March 2020 the nation went on a national lockdown, level 5 where everything was shutdown except for what is deemed as essential services by the lockdown regulations. The national lockdown was gradually relaxed in phases; first to level 4 on 1st May, to level 3 by 1^st June, and eventually to level 1 by midnight 20^th September 2020 with international travel rules kicking in on 1^st October 2020. However, on 29^th December 2020 the nation was forced to enforce an adjusted level 3-lockdown regulations partly in response to the increasing number of new cases as a result of the aggressive new strain of the virus discovered in SA.

Unfortunately such actions complicated the existing governance, human rights and security challenges facing the nation. Despite the fact that such tough choices had to be made to curb COVID-19 transmission, the obligation to respect human rights and uphold the rule of law remained every citizens’ responsibility. .

Consequences of COVID-19 management on Human Rights and Rule of Law

The lockdown regulations for managing the COVID-19 pandemic in SA led to the restriction of movement, introduction of night curfews, closure of all but essential services and ban of alcohol and tobacco sale. These actions have had both direct and indirect consequences on several rights, freedoms, and the rule of law in the country. The constitutionally recognized rights that are mostly affected by these actions include freedom of movement, assembly and trade.

• First, the lockdown rules severely restricted freedom of movement. For instance the right to movement is severely hampered as a result of imposed night curfews and restrictions on the freedom movement. Unless classified as an essential service provider, people were only permitted to go to supermarkets, pharmacies and hospitals only. By May 22^nd, a total of 230,000 people were arrested for acts related to violation lockdown regulations such as non-adherence to curfew restrictions.
• Second, the lockdown regulations provide strict restrictions on the right to assemble thus limiting other human rights including political rights, freedom of expression and association particularly the right to life, dignity and access to health care and spiritual services. The lockdown restrictions imposed the closure of houses of worship like churches, mosques and synagogues in SA thus affecting people’s right of worship and expression. While on paper provisions have been made to ensure these rights, however its implementation has been a challenge. For instance, amid the flooding of COVID-19 misinformation (unverified and sometimes conspiracy filled information), freedom of expression is highly regulated and censored in SA.
• Third, the right to trade and access goods and services: – While the country was opened for essential services the classification of these essential services restricted access to other goods and services that are considered essential for human survival. Essentials services that were accessible during the lockdown included food, toiletries, security services, cleaning services and health services. For instance, the lockdown regulations allowed supermarkets and ‘spaza’ shops to operate but restricted on the kind of goods to be sold. Only food, toiletries and medicines were sold during the national lockdown level 5 and level 4, however items like clothes, electronics like bulbs and heaters, were not available for purchase in some areas of the country. This violated the core human right to be clothed and keep warm especially during the winter season.
• Fourth, the lockdown regulations providing for the suspension of ordinary functions of the courts from 27^th March, 2020 impinged the right to justice. An online guide to the law by civil society lawyers and activists documents numerous human right risks and possible abuses as a consequence of actions towards the COVID-19 pandemic in SA.
• Fifth, several matters have been raised challenging the lawfulness of these regulations and their implementation. For instance, the deployment of the South African National Defence Force (SANDF) to affected communities is questionable. Also, a significant number of cases have been filed against the army and police brutality associated with at least 11 deaths.
• Sixth, while it is deemed essential to trace cases of COVID-19 as well as their contacts, there are several concerns regarding the use of information and the possibility of violating the right to privacy. Contact tracing is vested on the collection and use of personal and health related information that which is enshrined on the basic human right deserving protection. The invasive nature of tracking, tracing and surveillance is a real concern infringing upon the constitutional right to privacy. It also evokes the ethical dilemma in medical professional practices. However, improvement were made to ensure the COVID alert app in SA no longer record geolocation, personal or health information but generates random codes and uses the location to determine how close one person is and for how long. But this begs the question that what will stop the state from using information from contact tracing for other purposes outside the intended public health realm?
• Seventh, the pandemic has significantly hampered the already challenged migration management in SA. The restrictions have further heightened the migrant communities’ struggle to accessing public services and appropriate government aids. For instance, the migrants were overlooked during the disbursement of COVID-19 aids and relief packages, which included food and clothes parcels. Similarly, migrant communities faced discrimination in the administration of the COVID-19 business relief packages. There has been a massive increase in food insecurity and hunger. This is a significant violation of the right to life, as both relief packages comprise basic human needs for sustaining life.
• Eighth, the closure and then phased re-opening of schools risked disadvantaging a generation of learners and increased inequality in educational outcomes. Despite initiatives for online classes, majority of learners were unable to fully participate due to issues related to cost or infrastructural access as well as lack of a conducive learning environment at home. This infringes the right to equal access to quality education especially for the poor majority of South Africans, thus it was highly contested.

Measures taken to manage COVID-19 have had profound effect on human rights and the rule of law in SA. These measures are however, a necessary evil that the nation and the world at large had to take, to manage the COVID-19 pandemic.  Moreover, until recently there was overwhelming support for the country’s measures to manage the COVID-19 pandemic. A survey by the Human Sciences Research Council (released on April 26^th) revealed high levels of compliance. In comparison to other African countries, SA’s response to the COVID-19 pandemic has mostly respected the rule of law. For instance, the government has provided updated information on pandemic as it unfolded and on its plans and strategies actions. Moreover, the government has permitted an open dialogue with the public to challenge such measures in the court of law. Nonetheless, caution needs to be exercised in ensuring that rule of law, human rights and freedoms are upheld even during a pandemic. Provisions must be made not only on papers, that is written statements as is the case with the COVID-19 regulations, but also the government and other stakeholders must ensure such measures are implemented and adhered to safeguard human rights and the rule of law during and after the pandemic.

Maria Lauda Goyayi is a researcher at the School of Management, IT and Public Governance, UKZN. She writes in her personal capacity.