DECLARING A STATE OF EMERGENCY: WHAT DOES IT MEAN?
In light of the current unrest, violence and looting in, mainly, Kwa-Zulu Natal and Gauteng, many citizens, and businesses alike, are calling on government to declare a state of emergency.
A state of emergency is an extraordinary measure which is designed to give government special powers and authority which it would not ordinarily have in a democracy. A declaration of a state of emergency, to a significant extent, may suspend political and social life. A state of emergency also, to significant extent, concentrates power with the President who may make emergency regulations, in terms of the State of Emergency Act, “as are necessary or expedient to restore peace and order and to make adequate provision for terminating the state of emergency, or to deal with any circumstances which have arisen or are likely to arise as a result of the state of emergency”.
The power to declare a state of emergency arises from the Constitution. In terms of the Constitution, a state of emergency may be declared when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency, and the declaration is necessary to restore peace and order”. The Constitution provides that only an Act of Parliament can declare a state of emergency.
The Constitution does provide some important safeguards to ensure the sanctity of the provisions of the Constitution and the rights of ordinary people that flow from it, as well as to limit abuse of the state of emergency provisions. Importantly, the state of emergency, can only be declared by Parliament and can last for a maximum of 21 days. This 21-day period may be extended, however, by the National Assembly for no more than three months at a time. The Constitution also provides that the Court has the power to determine the validity of the state of emergency, including any regulations made in terms of the Act.
A major implication of declaring a state of emergency and the laws that will flow from it, is the infringement or limitation of many rights enjoyed by people living in this country. In this regard, many of the rights enjoyed under the Bill of Rights may be limited. Under a state of emergency, the government may detain accused persons without trial; censor the media; limit freedom of movement of people; limit access to communications (phone calls, WhatsApp, Twitter, Internet in general), etc. Regulations must, however, be published under the Act declaring a state of emergency in order to limit rights, impose penalties or issue orders, etc.
This does not imply that the State can do as it pleases under a state of emergency. It must still comply with international laws, and rights may only be restricted insofar as it is necessary to achieve a legitimate government purpose under the state of emergency. Despite the infringement of rights during a state of emergency, the Constitution does also provide that certain right cannot be limited during a state of emergency. These include equality (in certain respects), human dignity and life. Additionally, there are relatively strict limitations on detention without trial during a state of emergency.
South Africa remains a Constitutional democracy and it has very robust civil society organisations that regularly engage with government on its conduct and litigate in the courts to protect the rights of every individual in this country. So, whilst the concentration of power in the President or a few members of Cabinet may seem substantial in a state of emergency, the courts; civil society organisations; a well-developed corporate culture and people prepared to stand up for their rights could act as a weighty counterbalance to any potential abuses of the State during a state of emergency.
The call from many quarters to declare a state of emergency during the current period of general insurrection and disorder may be enticing however it may not be a good idea without properly considering the consequences for the freedoms and privileges granted to us under the Constitution— more so, as government has authorised the military to support and assist law enforcement to restore order in affected areas, a state of emergency may start to resemble martial law – where military force is used to severely curtail the rights of people.
Ultimately, the constitutional standard that must be met is whether, in current climate, the declaration is necessary to restore peace and order. This is the question that Parliament must grabble with should it be called upon to consider such extraordinary action.