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Calls for state of emergency in South Africa are misguided

14 Jul 2021 at 13:48hrs | Views
CASAC has noted with great concern several calls for the President to declare a state of emergency in response to the incidents of public violence and looting in the provinces of Gauteng and KwaZulu-Natal. Such acts of looting occur at a time when the country is officially under a declared national state of disaster resulting from the ongoing COVID-19 pandemic. The national state of disaster, enables the government to implement various measures aimed at, among other issues, containing large gatherings.

The rise of the looting and rioting - where people congregate in numbers that are already in violation of COVID-related regulations, indicates a failure of law enforcement to act within the parameters of the law. These calls for a state of emergency follow this unfortunate failure of law enforcement to contain the situation at an early stage.

However, in CASAC's view, calls for a declaration of a state of emergency are misguided at this stage as the objective conditions for such a declaration do not exist. An elevation into a state of emergency is not a matter to be taken lightly due to the litany of unintended consequences particularly relating to the interaction between civilians and the armed forces.

In our view, the current violent conditions can be adequately dealt with in terms of the existing powers granted to the government by the Constitution and the law and aided in particular by the provisions of the Disaster Management Act.

The President's deployment of the South African National Defence Force to work with the South African Police Service to stabilise the situation and the National Prosecuting Authority's efforts to undertake speedy prosecutions of arrested persons are proof of this.

Under the Constitution, a state of emergency may only be declared when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency" and where such a declaration "is necessary to restore peace and order".

The present situation, while serious, does not threaten the sovereignty of the Republic or the functioning of its constitutional institutions and the relative success of law enforcement agencies to de-escalate tensions in a number of affected areas illustrate that peace and order can be achieved without resort to additional emergency powers.

A state of emergency is an extraordinary measure which should be reserved purely for the most extreme of circumstances. With it follows the suspension of fundamental rights guaranteed in the Bill of Rights, the exercise by the executive of broad legislative powers with few checks in place regulate the exercise of such powers, and may even expose South Africans to the excesses of military and police power.

The duty of the government to protect the lives and property of its citizens exists always and can be achieved under existing law without resort to a state of emergency.
For further enquiries: Lawson Naidoo 073 158 5736

Source - Lawson Naidoo