Is locked-down SA a frog in the warming Covid-19 pot?
It is in times like these that civil society must be especially vigilant to the dangers posed by a creeping authoritarianism
First there was the Financial Intelligence Centre Act (Fica), then there was the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica). Now there is Covid-19, which also heralds a sharp increase in surveillance as part of the government's introduction of a state of emergency under the Disaster Management Act.
It is in times like these that civil society must be especially vigilant to the dangers posed by a creeping authoritarianism, which much of society will likely tacitly support.
Fica was introduced in mulish compliance with the initiatives that came out of the US following the attacks of 9/11, with the ostensible objective of doing battle against terrorism and money laundering. The title of the Rica legislation says it all. The objective is said to be the enablement of law enforcement agencies in their pursuit of criminals who make use of cellphones.
Of course, if information of this kind is used to trace criminals, it can also be used to trace those who are not criminals. One of the effects of this legislation has been an overall loss of the sanctity of the privacy of the individual. There have, for instance, been incidents whereby individuals meekly disclose information of the most confidential kind — such as bank statements — even to commercial enterprises, with no statutory obligation to do so.
In the case of Fica and Rica, and in compliance with an apparently legitimate purpose, the citizen is bound by law to make disclosures to the commercial enterprises providing the relevant services, with personal information regarding identity and residence. In practice it has emerged, both here and abroad, that legislation of this kind (and the mindset that is cultivated as a result thereof) is increasingly used to justify the erosion of privacy and the proliferation of surveillance devices.
There are two components to this process, one more sinister than the other. The first is the incremental increase in state authority and information gathering, and the other (the more sinister) is the docile compliance of a populace making the wrong assumptions, becoming evermore subservient to state authority as it does so.
The philosophical question is whether it is justified to treat 99% of the population as though they belong to the criminal 1%, and whether, in pursuit of the criminals, society does not surrender more than could be justified by any of the successes that might be achieved.
In many parts of the West, and indeed the East, all the hallmarks of a fully fledged surveillance state are already in place. The vast infrastructure erected in pursuit of what George W Bush called “the war against terrorism” (once described as the world’s first war against an abstract noun) being a case in point.
On March 21, Isobel Asher Hamilton, writing for Business Insider US, reported on 10 countries tracking phone data, “ ... as Covid-19 heralds a massive increase in surveillance”. Samuel Woodhams, representing a digital pressure group, warned that “ ... the world could slide into permanently increased surveillance”. The risk of permanence is enhanced, said Woodhams, “ ... as many of the new measures have avoided public and political scrutiny and do not include sunset clauses”.
These are two markers to be assiduously observed: scrutiny and anticipated duration — explicitly stipulated in the enabling law: the absence of either must be regarded as a warning for the future.
Whether or not there is a sunset clause in the emergency regulations to be promulgated, much of the future risk is already discounted by a collective mindset that has grown accustomed to the effect of an extraordinary international crisis in which governments everywhere are adopting more or less stringent measures. It is no help to the cause of civil liberty that some of the most extreme measures appear to have had the greatest practical effect.
Some media headlines provide an insight into the nongovernmental attitude of certain individuals to the threat posed by the virus. “BofA (Bank of America) Calls For ‘War-Time Measures’ Urges Near-Total Fed Takeover of Capital Markets”. (Durden Dispatch, ZeroHedge, March 23 2020) This is a bank operating in the private sector, urging the equivalent of Marshall law and apparently willing to surrender its business autonomy to the regulatory authority.
In SA, the emergency regulations are promulgated as a consequence of the state of national disaster previously declared by President Cyril Ramaphosa. All of the steps taken in consequence thereof must conform to the law, in this case the Disaster Management Act. In terms thereof the declaration of a national state of disaster lapses three months after its declaration but can be extended for one month at a time, meaning it can theoretically be extended indefinitely.
There is, at this time, no reason to suppose that extensions will go on indefinitely, but there are certain attitudes of the officialdom and of the public that are likely to persist far beyond the expiry of the national state of disaster. These are the alerts to an impending rise of authoritarianism. It has repeatedly been said that there is no circumstance that so galvanises a population behind an incumbent government that compares to a national crisis.
It is significant that the president, in his announcement of the 21-day lockdown, made specific mention of the dire consequences for the economy. There is no doubt that he is correct in this. However, the economy was already in dire straits before the outbreak of the virus, with many eminent economists predicting imminent collapse. Now, a collapse that has become more imminent still can conveniently be blamed on the necessary response to Covid-19.
In like manner, the government will be prone to point to the necessity for increased surveillance (and the exercise of state authority — restricting personal liberty) for the sake of the public good. As has been done to such good effect before. We dare not forget the image of a frog being incrementally boiled to death.
• Van Schalkwyk is a retired judge.