Helen Suzman Foundation approaches the Constitutional Court seeking restoration of Parliament and the Executive’s roles in relation to Covid-19
21 May 2020
The Disaster Management Act vests extraordinarily wide-ranging legislative and executive powers in the Minister of Cooperative Governance and Traditional Affairs, to deal with issues arising out of occurrences like COVID-19. Under the Constitution, however, this law-making and executive power vests in Parliament and the Executive. Whilst centralising power in the Minister may have been justified by the sudden threat presented by COVID-19, this basic departure from the Constitution's separation of powers can only endure for as short a period as possible, namely, until Parliament and the Executive can gather themselves and exercise their legislative and executive functions in relation to COVID-19.
Parliament has a duty to pass legislation that regulates concretely the state's response to the threat posed and harm caused by COVID-19, whilst the Executive has a duty to prepare and initiate this legislation, for consideration, debate and ultimate passage by Parliament. The Executive would then have a duty to implement that legislation. Only by performing these duties will the current collapse in the separation of powers be remedied and South Africa's democracy restored to constitutional normalcy. In this way, in terms of the Constitution, both Parliament and the Executive have a central role to play in the state's response to COVID-19.
As recognised by the Constitutional Court, the parliamentary process is one which embraces openness, encourages critical debate and allows for greater input into law-making, resulting in a richer, more nuanced outcome (which may guard against any unintended consequences where such plurality of views is lacking).
In the aftermath of the declaration of the state of disaster, HSF submits, Parliament and the Executive ought actively to have taken steps to reclaim their constitutionally-assigned roles. They have failed to do so. Instead, for two months, they permitted the Minister, alone or with the National Coronavirus Command Council, to legislate the state's response to COVID-19. They appear content to allow their ultimate authority to be exercised by others, seemingly for as long as COVID-19 poses a threat.