Mpumelelo Mkhabela: Beware the coronavirus threats to our Constitution

What the constitutional and legal provisions sought to prevent - rampant collusion, excessive pricing, corruption and general rogue market conduct among private sector players - could prove costly to the public, writes Mpumelelo Mkhabela.  


What can potentially go wrong in the course of implementing President Cyril Ramaphosa’s otherwise noble national lockdown aimed at containing the spread of Covid-19?

A lot, especially because the declaration suspends some rights and governance systems enshrined in the Constitution and other laws.  

For example, it limits freedom of movement and assembly.

It can be argued, correctly, that the suspension or limitation of some rights is justifiable for the realisation of a right that trumps all: the right to life of all South Africans.  

In governance, the lockdown suspends some provisions of the Public Finance Management Act such as the solicitation of competitive bids for the provision of goods and services.  

This limits the fulfilment of the constitutional provision that prescribes that organs of state must procure goods and services in a manner that is fair, equitable, transparent, competitive and cost-effective.

This is so because government will be procuring on a national disaster basis medical supplies, food and a number of other products and services.  

Also suspended are some provisions of the Competition Act in order to allow for certain private sector players, particularly banks, to coordinate efforts to continue to oil the economy with the necessary financing.

All of these and other deviations are necessary to urgently deal with the negative repercussions of a national lockdown.  

But inherent in the suspension of some constitution and legislative prescripts are huge risks.

What the constitutional and legal provisions sought to prevent - rampant collusion, excessive pricing, corruption and general rogue market conduct among private sector players - could prove costly to the public.  

The already squeezed members of the public, either directly as consumers or indirectly as taxpayers, might end up being fleeced by unethical corporate players.  

In the public sector, there is the risk that the suspension of certain provisions of the Public Finance Management Act could be interpreted as tantamount to legalisation of what would otherwise be regarded as fruitless expenditure and abuse of the public purse.  

If fruitless and irregular expenditure was already part of the norm while the law was supposedly in full force, what more now that parts of the law are suspended?

Clearly, the room for gluttonous squander of limited public resources is huge.  

A national lockdown - a necessary step to save the nation from ruin - could open the doors for unscrupulous elements to literally milk the nation.

Those who have made a profession out of it - and there are many - must be salivating for a slice of the cake.  

Ramaphosa has sternly warned against this and the Department of Trade and Industry has said it had begun investigating companies involved in excessive pricing.

These warnings are well and good.  

The warnings would carry more weight if government had a track record of punishing public sector tender rigging that costs the public purse billions of rands annually.

All the evidence is in the Auditor-General's report.  

To its credit, the Competition Commission, the political oversight of which is under the DTI, has a history of punishing collusion and forcing compliance.  

There are other risks.

With the country now being run by the National Command Council, a semi-dictatorial structure that authorises and enforces regulations spanning all government departments, abuse of power cannot be ruled out.  

This is not to suggest that the National Command Council is not constitutionally legit. It functions in terms of the law.  

But the powers it exercises under circumstances where some constitutional and legal provisions are limited or suspended could lure it to exceed permissible bounds of executive authority.

Public comfort, however, lies in the fact that the National Disaster Act invoked by the president in his declaration of the national lockdown does not suspend the rule of law or the courts.  

Which brings me to the statement issued by Chief Justice Mogoeng Mogoeng.

Mogoeng correctly used his powers to provide directives to courts to avail themselves on matters that might be brought to their attention on an urgent basis, bail applications, maintenance and domestic violence and those that concern the welfare of children.  

With due respect, the chief justice over-reached when he added a reminder to members of the public that courts have the power to pronounce on the validity of the declaration of a state of emergency and related matters.

He said courts would stay open in the event that members of the public might want to challenge the constitutionality or validity of the measures being implemented.  

Mogoeng’s statement is too excessive coming as it did from a chief justice who might have to sit in adjudication on the constitutionality or validity of the disaster regulations or state of emergency to which he refers, which may or may not be declared.

Needless to say, the president has not declared a state of emergency, unless the chief justice is prescient about what is still to come.  

The statement might reasonably be interpreted as an exhortation by the chief justice for members of the public to test the constitutionality or validity of the measures announced by the president.  

What Mogoeng said was correct and most likely came from a genuine desire to educate.

But it was nonetheless unnecessary and taints his office.

The legal profession which advises members of the public on legal matters knows too well that the Constitution, the courts and the rule of law are not on suspension during the state of national disaster or emergency.  

Mogoeng’s statement is one example of what can go wrong in our constitutional system as we collectively fight the deadly coronavirus.

So, we all have to be vigilant not to allow coronavirus to lead us towards compromising our constitutional order.

We’ll need it intact post-Covid-19. 

- Mkhabela is a regular columnist for News24.

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