South Africa: Lockdown Regulations, a Case of State Power By Ministerial Directive


The Covid-19 State of Disaster lockdown regulations were amended three times within a week, in what government says is a learning curve. But some amendments highlight contestation between securocrats and constitutionalists in the Cabinet. The question must be raised: will lockdown governance by ministerial directive and regulation be the new normal?

That the initial State of Disaster regulations included a wholesale indemnity for security forces, from soldiers and police to traffic officers, was the first signal securocrats were making a play for control.

Regulation 11E came as a surprise to many in government circles as this indemnity provision was not in the regulations sent for appraisal to the state's lawyers. Such indemnity may well be unconstitutional: Section 37 of the Constitution prohibits indemnity for anyone in the state even during a State of Emergency.

Passing the draft regulations over legal eyes had been a check and balance as those regulations were drafted by NatJoints, the National Joint Operations and Intelligence Structure, which on the back of a Cabinet memo brings together police, military and state security in a structure that does not account publicly.

It's not clear how the indemnity provision slipped into the regulations that were signed off by...

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