MAVERICK CITIZEN: SPOTLIGHT OP-ED
What does a Covid-19 National State of Disaster mean for rights?
By Ektaa Deochand and Mbalenhle Baduza•
South African President Cyril Ramaphosa. (Photo: Daily Maverick/Leila Dougan) Less
The government decided that the medical emergency posed by the virus called for special circumstances and immediate action, beyond what was provided for in existing legislation to prevent and contain threats to the healthcare system, economy and, most importantly, people.
Following the President’s announcement, 20 cabinet ministers held a press briefing on Monday to elaborate on plans to combat Covid-19. The ministerial briefing gave us some insights into the way forward, but much will depend on the exercise of powers under the DMA, the National Health Act and other regulations.
Let us unpack those powers.
Understanding the DMA and the limitation of rights
A National State of Disaster is not the same as a State of Emergency in terms of section 37 of the Constitution. The latter triggers the application of a different Act – the State of Emergency Act – and allows for more radical limitations to rights.
The DMA provides for policy that is integrated and co-ordinated to focus on preventing or reducing the risk of disaster and mitigating the severity of a disaster. It also provides for a rapid response to disasters; post-disaster recovery, and rehabilitation and establishing of functioning disaster management centres on all levels of government.
In terms of the Act, there should be a funding framework and the President did mention an economic stimulus package – something Finance Minister Tito Mboweni is yet to properly unpack for the public.
South Africa has faced, and continues to deal with, numerous health threats and epidemics, such as HIV and TB, but the nature and magnitude of Covid-19 is unprecedented and its potential effects have yet to be fully understood.
With a national disaster of this nature, which requires social distancing, quarantine and isolation measures, it may be necessary to limit individual and collective rights. This includes constitutionally protected rights such as freedom of movement, assembly and religion and rights to privacy.
The limitation of rights clause, under section 36 of the Constitution, allows for the restrictions of rights only to the extent necessary in an open and democratic society based on human dignity, equality and freedom.
Even in times of national disaster, limitations of rights cannot extend beyond what is necessary and must be in line with the constitutional values of society. Any regulations published and measures taken must, therefore, comply with these prescripts – with human rights being at the centre of all prevention, preparedness and treatment efforts.
Let us then turn to the Regulations issued in terms of the DMA by Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, on 18 March 2020. Dlamini-Zuma’s department is responsible for disaster management.
Regulations and directions under the DMA
Here is what the relevant provisions say:
Sections 2, 5 and 9: Release of resources
Organs of state, at all levels, must release available resources to effectively deal with the National State of Disaster. This includes making available vehicles, facilities and equipment by the Department of Defence; personnel to render emergency services; isolation and quarantine facilities by the Department of Public Works and Infrastructure; and Treasury to avail funds within its budget – as far as possible without affecting service delivery in the realisation of the rights of children, education, housing and access to healthcare, food, water and social security.
Interestingly, the regulations do not address any resources which ought to be made available by the private health sector, should the need arise. However, during the media briefing on Monday, Health Minister Zweli Mkhize indicated that private health facilities may have to help out. Such public and private collaboration will be crucial given the limited ICU capacity in the public health sector.
An article by Alex van den Heever suggests that, based on current projections, the virus could generate an overwhelming demand for critical care beds, in which case a clear agreement with the private health sector would become crucial.
The regulations further provide for emergency procurement procedures in terms of the Public Finance Management Act and the Municipal Finance Management Act. Any donor funding to assist in the disaster is to be paid into the Reconstruction and Development Fund.
With Mboweni yet to announce the exact amounts to be made available to combat Covid-19, we know from the 2020 Budget Review that R438 million has been allocated to provincial disaster relief and R1.1 billion to municipal disaster relief over the next three years.
Once the financial implications of Covid-19 are predictable, we encourage Mboweni to release the allocated funds and comply with reporting mechanisms under the DMA.
Section 3 and 8: Social distancing
Gatherings of more than 100 people are prohibited. Enforcement officers can take appropriate action to disperse a gathering, by first ordering persons to disperse, and then possibly arresting people. However, such persons retain their rights to due process when arrested or detained, as contemplated in the Constitution and criminal procedures.
The sale, dispensing and transportation of liquor for taverns, restaurants and clubs is limited and opening hours have been widely publicised.
The convenor of a gathering of over 100 people or a person who permits more than 50 persons at a premises where liquor is consumed is guilty of an offence and liable to a fine or imprisonment for up to six months.
Section 6 and 7: Closures and suspensions
All visits by members of the public to correctional facilities have been suspended for 30 days. This is also applicable to facilities of Social Development, such as treatment centres, shelters and care centres for children and youth. The Minister of Justice may extend these restrictions.
Schools and partial care facilities had to be closed by 18 March.
Consent to medical treatment, isolation and quarantine
The Chinese government implemented extreme measures to contain the spread of the virus, described as unprecedented in public health history. These measures appear to have worked as the number of new cases have declined. However, some observers have criticised these measures as violating fundamental human rights and freedoms.
Cases of rights infringements have been reported in Hubei, such as the lack of access to basic necessities and medical care. The UN subcommittee on prevention of torture has said that while quarantine is for the public benefit it should not result in the ill-treatment of those affected or restrictions on movement that appears to have no end.
In terms of the DMA regulations, “isolation” is defined as separating a sick individual with a contagious disease from healthy individuals without that disease in such a manner as to prevent the spread of infection or contamination; and “quarantine” is separating asymptomatic individuals potentially exposed to a disease from non-exposed individuals.
In terms of the National Health Act, a health service may not be provided to a user without the user’s informed consent, unless the failure to treat the user would result in a serious risk to public health.
NHA regulations state that full respect for the dignity, confidentiality, human rights and fundamental freedom of persons must be taken into account. These regulations seek to strike a balance between the demands of public health and individual rights. Its operation has been visible from the time the first confirmed case of Covid-19 in South Africa was reported on 5 March 2020.
Section 14 of the NHA regulations requires individuals, who may have a notifiable medical condition (such as cholera, malaria or listeriosis), to voluntarily present themselves for testing, medical treatment or quarantine.
The same obligation exists for any person who has been in contact with individuals who carry the virus. This has enabled the National Health Department to gain reliable intelligence on the scale and rate at which the virus is spreading. As of 20 March 2020, the country had 202 confirmed cases of Covid-19.
Medical examination, treatment, isolation or quarantine procedures must be determined on a case-by-case basis and tailored depending on the public health risk and individual circumstances of the person in question. Section 15 empowers the head of the provincial departments of health to approach the High Court and obtain an order for mandatory examination and quarantining of individuals who pose a public health risk but refuse to give their consent for testing.
The Gauteng Department of Health successfully obtained and implemented an order, on an urgent basis, against an individual who refused to test for the virus after it was confirmed that two of his family members had tested positive.
The requirement to get a court order for mandatory testing, treatment and quarantine is a way to ensure protection of the general public, while also safeguarding the well-being of the person refusing consent and ensuring that their rights are adequately protected. The refusing individual has the right to legal representation, and in cases of indigence must be provided with legal representation by the State. In addition, the NHA regulations require the refusing person to be offered counselling on the risks to everyone involved. In this way, the regulations are a good example of protecting individual rights while also protecting public health.
However, the new regulations under the DMA seem to move away from the rights-based approach of the NHA.
Section 4 of the Covid-19 regulations explicitly prohibits refusals to testing, medical treatment, isolation and quarantine by persons who have tested positive for the virus, suspected of having contracted the virus or who has been in contact with a carrier. Enforcement officers are empowered to place such persons in isolation or quarantine for a period of 48 hours, pending a warrant issued by a magistrate.
No provision is made for the individual rights to due process or to be legally represented. It also broadly indemnifies the enforcement officer by stating that no person is entitled to compensation for any loss or damage arising out of any action of an enforcement officer taken under the regulation and made in good faith.
According to the WHO Interim Guidance on Considerations for Quarantine for Containment for Covid-19, people quarantined should be provided with healthcare, support and basic necessities with the needs of vulnerable populations being prioritised. Any mass scale quarantine initiatives should give effect to these considerations.
On 10 March 2020 the NICD released Draft Guidelines for Case-Finding, Diagnosis, Management and Public Health Response for COVID-19. This states that any person who has had close contact with a confirmed case of the virus while that person was ill or seven days before the illness should be monitored (at home) for the appearance of respiratory symptoms.
If symptoms develop within the first 14 days, the person should be considered a “person under investigation”. Close contacts who are ill and do not require hospitalisation for medical reasons may be cared for and isolated in their home while being evaluated for infection. Depending on the level of risk of exposure, different levels of quarantine can be employed.
Section 11: Offences and penalties
The regulations prescribe harsh penalties around misinformation and exposure of the virus, including that a person is guilty of an offence and on conviction liable to a fine or to imprisonment of six months if they intentionally misrepresent that they or any other person is infected with the virus.
Also, any person who publishes a statement through any medium, including social media, with the intention to deceive any other person about the virus, commits an offence and is liable on conviction to a fine or imprisonment.
Most concerningly, any person who intentionally exposes another person to the virus may be prosecuted for an offence, which might include assault, attempted murder or murder.
Despite the fact that there is a requirement of intention to trigger these offences, given the fact that persons may not even be aware of their Covid-19 status and the rapid rate at which the infection spreads, it appears the offences are overly draconian and may have dangerous consequences if carelessly applied.
In this regard, lessons should be taken from the 2013 UNAIDS guidance on ending overly broad criminalisation of HIV non-disclosure, exposure and transmission.
Overly broad application of criminal law to HIV transmission serves as a fitting example of how the criminalisation of intentional transmissions, as a public health strategy, often leads to ineffective and discriminatory practices.
The UN recommends alternatives be considered, taking into account the principles of positive health, dignity and prevention.
Section 10: Authority to issue directions
This section specifically enables the Health Minister to issue directives, amongst other things, for the provision of medical supplies, health equipment and sanitation materials; in the event of fatalities from the virus, directives for the identification of mortuaries and disposal practices for the remains.
Further, should the need arise, the Minister may direct for the sourcing of human resources to render services at identified sites, including retired health professionals of the Expanded Public Work Programme and NGOs.
However, for most of the other ministries mentioned under section 10, there is minimal guidance provided for the content of directives to be issued. Instead a wide range of discretionary powers are afforded to each Minister to issue and vary directives to address, prevent and combat the spread of Covid-19.
As noted by Chris Grove, executive director of ESCR-Net, measures taken to combat and respond to the virus will need to be in line with constitutional and international law requirements to ensure:
“…timely, deliberate, concrete, and targeted official responses that prioritise the needs of those in disadvantaged groups and grave situations, while abiding by guarantees of equality and non-arbitrariness, and upholding rights to information, participation, healthcare and the underlying determinants of health, and security in the event of unemployment or sickness, among other rights”.
Where to from here?
Civil society and affected stakeholders should remain vigilant as directives are rolled out. The introduction of socially restrictive measures will undoubtedly have severe effects on the socio-economic status of our already crippled state, as well as on the rights of individual freedoms.
The threat and severe consequences related to criminalisation could unduly violate the rights of individuals and may incite more fear and stigma around the virus without serving the intended purpose of the regulations.
Although a heavy onus rests on our leaders to see us through this pandemic, all of us need to be active participants, not least by ensuring constitutional rights are not disproportionately eroded.
To echo the words of President Ramaphosa: “This national emergency demands co-operation, collaboration and common action. More than that, it requires solidarity, understanding and compassion.” DM
*Deochand is an attorney and Baduza a legal researcher at Section27’s Health Rights Programme.
This article was produced by Spotlight – health journalism in the public interest.
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