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Freedom’s just another word, for nothing left to lose… except life as we know it

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Even as we ‘celebrate’ our Freedom Day, it is our duty as citizens to accept that our freedom of movement will remain tampered with and that all of us will remain isolated from each other, and from our lives in order to avoid the extinction of humankind.

Freedom Day on 27 April 2020 marked an important day on the South African historical and human rights calendar. It was then that we fondly remember the late President Nelson Mandela’s 20 April 1964 speech during the Rivonia Trial that changed the path of history in South Africa.

Just as a reminder, in his speech Mandela spoke of dedicating his life to the “struggle of the African people”. That he “fought against white domination, and I have fought against black domination”, and most importantly, that he “cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities”.

Dr Divine Fuh, writing in Daily Maverick on 24 April 2020, in part chronicles the anatomy and development of the lockdown regulations in South Africa, which date back to 15 March 2020 when President Cyril Ramaphosa declared a State of National Disaster and advised the public of a plethora of measures as a response to the threat of Covid-19. 

Primarily, Fuh focused on the Freedom Day of 27 April 2020, and the many malaises having a stronghold in South Africa. Towards the end of his interesting piece, Fuh reminds us that “it has been 26 years since we inaugurated Freedom Day on 27 April 1994”, and that “it is time to reflect and make up for our omissions”. 

“Those who insist that we must absolutely return to normal and continue with business, as usual, must ask themselves if our past omissions are what they want to return to, or should we free ourselves by imagining a new social contract,” Fuh said poignantly.

I can mention several past omissions. Standing out for me is the ANC-led government allowing the Gupta family to run amok in our stream of commerce. To borrow from Transparency International, for example, “the Gupta family took as much as $7-billion in government funds, including a $4.4-billion supply contract with South Africa’s rail and port company. The Guptas also hired and fired government ministers, while the president fired tax officials and intelligence chiefs to protect them from the investigation”.  

Also important to mention as an unforgivable omission by our government is allowing the VBS scandal, infamously reported in what the forensic report of Advocate Terry Motau called The Great Bank Heist. The disputed report identified about 53 people and companies who looted VBS of billions of rands over the period 1 March 2015 to 17 June 2018, and left scores of indigent South African investors penniless and having to continue to suffer the indignity of derelict municipalities. This includes the illegal and criminal activities of some of the municipalities who invested in VBS, making many of their communities suffer extraordinarily from a lack of basic human rights such as the right to water that is much needed for hygiene in the combat of Covid-19. 

VBS’s looting and thiefdom became one of the heaviest prices ordinary South Africans had to suffer for exercising their political freedom of choice to be led by questionable people and alleged criminals. Another omission of note is the politics of consumption, which has left the South African economy and peoples’ empowerment and sustainability in a condition of perpetual dependency. 

We failed to heed advice from our own economists like Moeletsi Mbeki who in February 2020 recommended, among other things, that “the restructuring of the SA economy be more investment-driven rather than consumption and finance-driven, and a phasing out of BEE demands on foreign investors”. Mbeki’s recommendations spoke of the need to bring about true constitutional transformation to benefit all South Africans, within the framework of a democracy that is consolidated, characterised by the productive and inclusive economy.

Government failed its WHO obligation to prepare for epidemics and pandemics

I want to zoom to one of our past omissions – to borrow the phrase by Fuh – as we celebrate our freedom, albeit virtually and in spirit: The failure to prepare for health disasters such as the Covid-19 pandemic. 

Unfortunately, our omission (or to be blunt, our failure), now weighs heavily on our freedoms for which Mandela fought. Yes, governments failed to prepare for disasters such as Covid-19, even after being advised to prepare for future disasters by the World Health Organisation (WHO). It was because of past pandemics such as the 1918-1919 Spanish Flu and outbreaks such as Ebola and Zika that the WHO urged governments to prepare, and respond adequately and appropriately to other public health threats. 

Governance – the assignment of authority and the specification of procedures – is a central pillar of effective pandemic management. No preparation can ever be enough. But, intentioned preparations could have lessened the burden of Covid-19, including that experienced during previous pandemics and epidemics, such as “a substantial loss of growth in the private sector, posed threats to food security due to a decline in agricultural production, and burdened cross-border trade with restrictions on movement, goods and services”.

There is no use crying over spilt milk. But we must use events such as Freedom Day to remind our government that if we forget the past, history will repeat itself. And if we do not prepare for every eventuality, the ordinary citizen will suffer the most. 

Pardon me for crying out loud, but the WHO was aware of the gaps in global pandemic governance, and consequently released its International Health Regulations (2005) (IHR) setting out key principles to guide national pandemic preparedness and response. In particular, the IHR requires signatory states to develop national plans for pandemic preparedness and response.  

South Africa became a signatory to IHR on 15 June 2007. However, the start of our national Covid-19 response showed that we were ill-prepared or that we never took IHR seriously. As a result, the country had to resort to one of the world’s most stringent and perhaps human-rights threatening lockdown regulations ever. Do not get me wrong, there is nothing wrong with using lockdown regulations in response to Covid-19. In fact, the WHO does support the use of legal frameworks such as legislation, regulation, administrative orders and policies. The only important caution is that states must follow the human rights-based approach (HRBA) when using such measures.

It is not only about an absence of Covid-19

The preamble to the constitution of the WHO clearly declares that “the health of all peoples is fundamental to the attainment of peace and security and is dependent on the fullest cooperation of individuals and States”. Also, that: “Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”

An interesting passage from the preamble of the WHO constitution, in the context of Covid-19 lockdown measures, is that “health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity”.

Emphasis should be on the phrase “mental and social wellbeing and not merely the absence of disease or infirmity”. The social and mental wellbeing of South Africa will be tested as we look forward to the new Level 4 Lockdown – in particular, the fact that stay-home orders are still in place, and a curfew has been introduced. In terms of the new Level 4 Lockdown Regulations, no one will be allowed out of their homes between 8pm and 5am. Curfew laws are generally regarded as the most limiting measures on human rights and civil liberties. It’s for this reason that curfews are mostly implemented under State of Emergency measures. 

If I go down memory lane, the Level 4 curfew is reminiscent of the 1977 night permit system and the apartheid curfew laws that restricted movement in certain areas between 11pm and 4am pursuant to section 31 of the Black (Urban Areas) Consolidation Act 25 of 1945. During that era, the justification of curfew laws reported in newspapers nationally and internationally was that the curfew “gives the police a firmer basis for countering the repeated ambushes of security force patrols in the ghetto townships by groups armed with firebombs and, increasingly, with rifles”.

The apartheid government did not hide the fact that it was fighting a visible “enemy” which was trying to liberate all South Africans from the oppression of the apartheid machinery. Then, freedom was not free. Stay-home orders and curfews under Level 4 have a totally different justification: The invisible enemy in the name of Covid-19. Still, like then, freedom is not free.

It is only human for one to feel ambivalent about the lockdown. Do you celebrate the continued banning of the sale of alcohol under Level 4 or stay-home orders, knowing that you cannot enjoy a glass of your favourite gin, while others are allowed to smoke their lungs away during the lockdown? Thinking about what should and should not be banned or restricted during Level 4 is mentally taxing. One thing I am certain of is that the ban on the public sale of alcohol is one of the source control measures the government introduced to stop the spread of Covid-19. Alcohol is one of the foremost global burdens of disease and should not be carelessly consumed during this Covid-19 era.

 

“Freedom Day is here, but freedom, as we know it, is gone. We are left with one last thing: the freedom to reflect.”

 

Another certainty is that if we do not adhere to the strict requirements of Level 4, the government will revert to Level 5 lockdown. The worst of the devils to fear of dusk-to-dawn curfew is the violation of rights and freedoms at the hands of rogue members of the South African Police Services (SAPS) and the South African National Defence Force (SANDF), overzealous to enforce the lockdown.

According to Human Rights Watch, Kenya has already suffered casualties of at least six people from police violence under the guise of enforcing the dusk-to-dawn curfew imposed exactly a month ago – 27 March 2020. The SAPS and the SANDF have already been accused of excessive force amid the Covid-19 lockdown and fears are that the use of excessive force will escalate during Level 4 curfews.

This should not create an impression that I do not take the lockdown seriously. However, we cannot be denialist like people under apartheid who insisted that life was normal or that things were not going too badly. 

I came across an eye-popping digital version of an article about South Africa published in the New York Times of 19 August 1985 titled: “Even a Night on the Town Shows Apartheid’s Effects”, by Allan Cowell. The article reports the story of a man who was selling Picassos and Chagalls in a glittery part of Sandton City, who when asked about life in South Africa said: “Well, no, things are not going too badly in South Africa these days”. But the man was in denial, and Cowell reported the following:

He said his clients, from the white suburb of Sandton, were mainly affluent people who were uncertain of their future in the vortex of unrest swirling in their nation, and so had little interest in fixed assets.

The value of their money, he said, seemed to wither by the day.

And since the Government slapped a curfew on the sprawl of homes and tensions and conflicting passions… business, he said, has fallen off.

The article depicted the curfew and other apartheid restrictive measures using the comparison and the contrast narrated in the famous novel by Charles Dickens, A Tale of Two Cities. As we celebrate Freedom Day Week, our lived reality is that post-Covid-19 South Africa cannot be allowed to be business as usual.

To quote Divine Fuh again: “Freedom Day is here, but freedom, as we know it, is gone. We are left with one last thing: the freedom to reflect.”

Freedom is not free, Freedom is gone, and Freedom will never be the same ever again. Even as we “celebrate” our Freedom Day, it is our duty as citizens to accept that our freedom of movement will remain tampered with as our government looks for medical Covid-19 countermeasures and that all of us will remain isolated from each other and from our lives as we are accustomed to in order to avoid the extinction of humankind.

During your isolation under Level 4 Lockdown, take refuge in music, for songs and singing were among the instruments that propelled South Africa to Freedom Day. Take a listen to the track Save You from the album Lost Property, whose lyrics include lines like “Tired eyes, maybe you’ve seen too much/Tired heart, every end has a start.Time will save you.

Indeed, the time we spend at home will save us from going back to Level 5 Lockdown. But most importantly, it will save us from death by Covid-19. DM

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