Even in the absence of a formal State of Disaster, health minister Zweli Mkhize wants draconian powers to lock down society to curb the spread of notifiable diseases. And there’s nothing to stop him.
‘“Emergencies” have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.’
Thus wrote Friedrich Hayek in volume 3 of Law, Legislation, and Liberty. And as Ludwig von Mises has observed, governments never give up power voluntarily.
The African National Congress (ANC) has tasted dictatorial emergency powers, and it likes them. The very name of the National Coronavirus Command Council suggests that the party prefers to govern by command, rather than by consent.
So, with the prospect of an end to the formal State of Disaster upon us, health minister Zweli Mkhize has hatched a plan to assume command powers in perpetuity. He has published amendments to the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions that would give him extensive powers to impose the kinds of restrictions with which lockdown has made us painfully familiar.
Under the amendments, he will be able to close businesses, impose curfews, and restrict the free movement of citizens at will, as long as the rules are related to managing and controlling the spread of a notifiable medical condition.
They also empower him to publish additional regulations not contemplated in the amendments, should he so desire, so renewed alcohol and tobacco bans are not out of the question. And, of course, the right to elevate a contagious disease to the status of notifiability also lies within the health minister’s purview.
The National Health Act of 2003 empowers the minister, without any constraints other than consultation with a National Health Council which the minister chairs, to make regulations regarding communicable and notifiable diseases. He also needs to consult with cabinet ministers whose portfolios would be affected by the regulations. However, none of the lockdown powers Mkhize is claiming requires the assent of Parliament.
These draconian powers may be exercised without any oversight. There is no requirement in the regulations to consider the potential economic implications, the harm caused to livelihoods, or the consequences for civil liberties. There is no injunction to exercise these powers in a fair or reasonable manner and no call for rationality or proportionality. There is no limit to these powers, either in time or extent.
Even challenging them in court may prove difficult, given the low bar of the legal ‘rationality test’, under which the minister only needs to provide a reason and demonstrate that he considered his decision. The courts may not rule on whether that decision was rational in the sense that it was correct, given all the available evidence.
I was taken aback at how dramatically our rights could be curtailed merely under a State of Disaster, without even suspending the Constitution. Imagine my surprise when I discovered that the National Health Act empowers the health minister to make any regulations whatsoever in pursuit of their goals. The notion of ‘checks and balances’ seems to have fallen by the wayside a long time ago.
When Mkhize brought the amendments before Parliament’s Health Portfolio Committee – not as a legal requirement, but merely as a ‘courtesy’ – his own party heartily welcomed the new powers which he is about to bestow upon himself. Some opposition members objected, however.
‘The powers contemplated in these regulations are, in fact, emergency powers but without being of limited duration.’ ACDP MP Marie Sukers told Daily Maverick. ‘It would create an indefinite state of disaster at the discretion of the minister.’
‘Executive powers are very dicey at the best of times,’ DA MP Lindy Wilson told the paper. ‘So we are concerned. We cannot step on civil liberties.’
For all their objections, however, there is nothing the opposition Parliamentarians can do about it. They could try to amend the National Health Act to revoke the minister’s power to regulate without constraint, but that won’t happen without ANC Parliamentarians voting against their party line, which won’t happen when the ANC can simply drop them from the party list at the next election.
The totalitarian healthcare state
In my very first lockdown column, entitled How meekly and fearfully we march into totalitarianism, I asked the question: ‘Given that coronaviruses are not uncommon, and novel variants will continue to appear every few years – to say nothing of other disease epidemics – how can we trust that the totalitarian healthcare state will not become routine and normalised?’
Mkhize has answered that question now. No, we can’t. The totalitarian healthcare state will become routine and normalised, as I feared.
Standing regulations that can, at the whim of the health minister, close businesses and restrict the movement of citizens will add yet another major factor to the risk of doing business in South Africa.
If a restaurant owner cannot guarantee that their monthly revenue will be regular, why would a bank lend them money to expand their business? If a year’s profits could be wiped out by an unexpected lockdown whenever a new epidemic raises its head, why would anyone invest in South Africa?
Preserving the private sphere
Ultimately, these are infringements not only on civil liberties, but also on property rights. No doubt the minister would argue that lives are more important than property, but that would be to miss the point. Economic poverty comes with its own death toll, reducing life expectancy and making people more vulnerable to disease in the first place.
It is equally important, however, to resist the state’s encroachment upon private property and civil liberties. To quote the great Ludwig von Mises, from Liberalism: In the Classical Tradition:
‘All those in positions of political power, all governments, all kings, and all republican authorities have always looked askance at private property. There is an inherent tendency in all governmental power to recognize no restraints on its operation and to extend the sphere of its dominion as much as possible. To control everything, to leave no room for anything to happen of its own accord without the interference of the authorities – this is the goal for which every ruler secretly strives. If only private property did not stand in the way! Private property creates for the individual a sphere in which he is free of the state. It sets limits to the operation of the authoritarian will. It allows other forces to arise side by side with and in opposition to political power. It thus becomes the basis of all those activities that are free from violent interference on the part of the state. It is the soil in which the seeds of freedom are nurtured and in which the autonomy of the individual and ultimately all intellectual and material progress are rooted.’
It is critical to push back against the ever-greater thirst for power on the part of the ANC government. Countries prosper, by any measure you’d like to choose, in proportion to their economies’ freedom from government control and intrusion.
Not only that, but economies prosper merely by becoming more free, and wither merely by becoming less free, no matter their initial state. The latest Economic Freedom of the World report by the Fraser Institute offers a blueprint for national prosperity.
Mkhize’s regulations do exactly the opposite. They are anti-liberty and anti-growth. Instead of allowing the health minister to assume draconian new powers, we ought to drastically roll back the power of the state. Mkhize and his totalitarian ilk must be strongly resisted.
[Picture: wal_172619 from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR