NEWS
12/12/2017 07:19 SAST | Updated 12/12/2017 07:20 SAST

'State Of Emergency' Is A Thing Again... After 20 Years

The Constitution allows the president to declare a state of emergency when war, invasion, revolt, natural disasters or other dangers threaten the nation's safety.

MUJAHID SAFODIEN via Getty Images
SA National Defence Force personnel and SA Air Force helicopters show skills and capability during a military training exercise at Roodewal Air Force base on June 1, 2017 in Limpopo.

Cape Town – For the first time in 20 years, the presidency has started to compose regulations for a state of emergency.

Rapport, sister publication of News24 and HuffPost SA, saw the draft regulations in terms of the State of Emergency Act 64 of 1997.

In terms of these draft regulations, any security official will have far-reaching powers to act within his or her own judgement, arrest people, search property or cut communication channels such as cellphones or the internet.

The Constitution allows the president to declare a state of emergency when war, invasion, revolt, natural disasters or other dangers threaten the nation's safety.

Former president PW Botha declared such a state of emergency on July 25, 1985. Activists were held captive in unknown places for undetermined periods.

At least 575 people were killed within six months of this announcement.

Concern over 'vague' guidelines

The Act of 1997 replaced the notorious apartheid-era laws, but the regulations that set out what should happen during a state of emergency have never been promulgated.

According to an internal memorandum from the military, President Jacob Zuma appointed a team to compose the regulations, but it is dragging its feet.

Over the past few weeks, the security sector has been urged to urgently provide contributions to complete the project.

National director of Lawyers for Human Rights advocate Jacob van Garderen has read the draft regulations and is concerned about how vague they are.

"It reminds one of the 1980s when the apartheid government used the declaration of a state of emergency to suppress political dissent."

He said the regulations are vague about how much power various role players such as the military and the police would have and how much force they would be allowed to use.

"It is almost a matter of one size fits all," he said.

Broad wording

The army decided after a workshop to support the project and develop an operational plan.

Army spokesperson Simphiwe Dlamini said the army was just a role player and was not in charge of the sudden review.

The presidency didn't respond to Rapport's questions.

According to the draft regulations, no person may write, publish or broadcast something that could be threatening to somebody else or his family.

Members of the security forces are allowed to use as much force to restore law and order as deemed necessary under the circumstances, as long as it is proportional.

Van Garderen said the wording is very broad.

'I can see it end up in court'

"Any meeting, even if it is not public, could be prohibited.

"The context of the regulations concerns me. Civic organisations opposed the amount of force used by police during the xenophobic violence a few years ago and at Marikana.

"If these draft regulations go through, I can see it end up in court."

According to commissioner of the Human Rights Commission advocate André Gaum, any legislation, and therefore the accompanying regulations, is subject to the human rights provisions of the Constitution.

According to the Constitution, a state of emergency may not last longer than three months, while the president's proclamation can be overturned and some constitutional rights – such as the right to dignity and life – can never be overturned, even in a state of emergency.

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