Is the government’s Covid-19 response undermining the constitution?
The powers and people of the National Command Council may be violating constitutional law, in terms of the Disaster Management Act
During what was has been widely lauded as one of the better presidential Covid-19 crisis speeches, President Cyril Ramaphosa said: “[We] have decided to establish a National Command Council (NCC) which will be chaired by the president. This NCC will include, among others, members of the inter-ministerial committee, and will meet three times per week to co-ordinate all aspects of our extraordinary emergency response.”
Despite the scant and confusing details provided to date about the powers and functions of the NCC, it is clear that the body is no paper tiger. It appears to be wielding significant policy-making powers, and dictating the formulation of regulations, but the legal basis on which it is doing so is not apparent. Two primary concerns arise.
First, is the council displacing constitutional and statutory functionaries under the Disaster Management Act (DMA), and reducing them to rubber stamps? If so, the regulations being issued may be unlawful.
Second, the dearth of available information about the NCC means it is not immediately clear how, and on what basis, the country is being governed at the national level during the state of disaster, or how national policy is being formulated. This has profound anti-democratic consequences, especially considering the oversight functions constitutionally vested in our National Assembly.
The traditional individual functions of the portfolios and their committees appear to have been suspended, and somehow subsumed into the functions of the NCC
Under more normal circumstances the national governance and oversight framework in the republic is straightforward. The president is head of what the constitution terms the “national executive”, which refers to the president and his cabinet, which is in turn comprised of himself and his ministers.
The president appoints these ministers, and assigns them each specific responsibilities by allocating portfolios to them. The president’s cabinet has 28 ministers. Each minister has a ministry, and a department, both of which assist the minister in developing and implementing policies for that particular portfolio.
To this end, parliament, which is the constitutional body elected to represent the people, has oversight over the national executive. The purpose of that oversight is to ensure that the president and his ministers are performing their functions adequately and lawfully.
The primary mechanism for this oversight comes in the form of portfolio committees. These committees “shadow” the portfolios of the ministers. Every portfolio has its own corresponding portfolio committee. When the functioning of these committees is hampered, parliamentary oversight is compromised.
When there is a state of disaster, the DMA, in sections 26 and 27, tells us three important things about how the crisis is to be managed. The first is that the national executive is “primarily responsible for the co-ordination and management of national disasters”. This is important. Although the national executive is empowered to manage and co-ordinate the crisis, it is arguably not empowered to radically centralise executive power into a body such as the NCC, which comprises only 14 ministers.
Doing so arguably extends far beyond the ambit of “management” and “co-ordination”. To the extent that such centralisation is permissible under the DMA, it would need to be regulated, and an ad hoc parliamentary committee would need to be established to maintain oversight over the council. None of this has been done.
The second is that the national executive’s management and co-ordination of the crisis must be done in terms of existing legislation as augmented by necessary regulations. The third is that only one minister as designated by the president (in this case, it is Nkosazana Dlamini-Zuma) has the power to make those regulations, and she must do so in consultation with the “responsible cabinet member”.
This appears to contemplate substantive consultation between Dlamini-Zuma and the minister of whichever portfolio is to be affected by the contemplated regulations. It is unclear how this scheme aligns with the existence of the NCC — especially in circumstances where the “responsible cabinet minister” is not one of the 14 ministers on the council.
The scheme of the DMA does not interfere with the usual functioning of portfolios and their committees: they should continue to do their work, and parliament should continue to exercise its oversight functions over the portfolios and their ministers as normal. That, however, does not seem to be what is happening.
As will become apparent from what is set out below, the traditional individual functions of the portfolios and their committees appear to have been suspended, and somehow subsumed into the functions of the NCC.
We don’t know precisely what the council’s function is. Our government has not been clear on this. During his initial address on March 15, the president told us that its function is to “co-ordinate” our response to the crisis. Two days later, the tweets on the presidency’s official Twitter page noted that the function of the council is to “lead” our response to the crisis. Promotion from a “co-ordinating” function to a “leading” role is significant because the legitimacy of the council depends on the role it is fulfilling. A co-ordinating role would be legitimate. A leading role in which the council is interfering in policy and regulatory matters would not be legitimate.
Jackson Mthembu, the minister in the presidency, has told us that that the council “advises the president”, and that its business includes “some very weighty matters” such as “how the government should respond” to the crisis. The press has also reported that ministers are “feeding” their work into the NCC. It is clear that the council is exercising an active role in policy-making, although the precise extent of this role is unknown.
This may be a problem as the council does not have policy-making authority. That power remains vested in the entire national executive, not in a select few from among its ranks.
The constitutional status of the NCC is far from clear. It is not a body established under the DMA, nor has it been established under any regulations.
But it doesn’t stop there. It appears from the statements of various ministers that the council may also be deciding what regulations and directions should be issued. One such example is police minister Bheki Cele’s welcoming of “the revisions by the NCC of the lockdown regulations” as quoted on government’s official website.
Another example is when transport minister Fikile Mbalula, in dealing with the issue of South Africans abroad, told the media: “We have made an evaluation and reported to the command council. [The council] then advised that we can issue directions to allow South Africans in foreign lands who want to return home to go ahead.”
There are numerous other examples in press reports of the council exerting authority over regulatory decisions. This is worrying. It does not have the power to decide what regulations and directions get issued or revised. That power vests only with Dlamini-Zuma and “the responsible cabinet minister”.
In acting in the current manner, the NCC may be usurping their roles, raising questions about the lawfulness of the regulations that have been issued to date. Even though these regulations have, to date, been issued by Dlamini-Zuma, their validity will be open to attack if the consultation process preceding their issuing was legislatively and constitutionally flawed.
We are largely in the dark about how decisions are being made at the apex of government, and who is making them; some contradictory and opaque pronouncements only add to the confusion. But what we do know raises serious questions. The constitutional status of the NCC is far from clear. It is not a body established under the DMA, nor has it been established under any regulations.
While section 9 of the Intergovernmental Relations Framework Act 13 of 2005 permits a member of cabinet to “establish a national intergovernmental forum to promote and facilitate intergovernmental relations”, it does not permit the establishment of a body such as the NCC, which appears to be leading the country’s response to the crisis and exercising policy-making and regulatory powers.
Under the circumstances, the possibility that the council may be usurping the roles of functionaries under the DMA, and jeopardising oversight (as has already been flagged by DA leader John Steenhuisen) requires immediate scrutiny and attention. As citizens, we must remain vigilant, but vigilance requires knowledge of what our government is doing, and the legal basis upon which it is doing it.
The information that our government has given us to date about the NCC is woefully inadequate. Under the circumstances we must issue urgent calls for clarity about the role of the council during this time of crisis.
• Richards is an advocate of the high court, focusing on constitutional and administrative law.
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