Responding to Covid-19: Emergency Laws and the Return to Government in South Africa

Abstract

South Africa's invocation of its Disaster Management Act in response to the outbreak of the novel Corona virus, Covid-19, presents a clear juncture in its contemporary Constitutional order. The ways in which power functions and the dynamics and signification it conveys are central to how the state is commanded and how law is communicated. Under the State of Disaster, an abnormality assumes dominance. The techniques of power that are mandated under the Act charges the Executive to directly confront Covid-19, the named enemy and scapegoat. The presence of both the normative Constitutional order and an exception, following Carl Schmitt, creates an uneasy synthesis. It requires the Executive to claim authority. Yet, with the Act invoked in terms of Constitution and thereby the people remaining sovereign, Executive power remains stunted. This study of South Africa’s response to Covid-19 highlights the unresolved tensions present when Constitutional democracies declare emergencies. The Disaster sees South Africa enter a situation whereby it is confronted with unprecedented legal and political challenges. Its response conjures existential questions regarding its political development and legal structures.