Abstract
The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.
Highlights
It has been said that “conversation is the soul of democracy”.1 Over the centuries, the phrase has become less of a soundbite and more of an adage, backed up by a plethora of confirmatory evidence.2 But if conversation is the soul, participation must be its body and, by implication, an element without which democracy cannot exist
The strength of the South African democracy was put to the test once again when COVID-19 emerged
This article will mainly argue that the COVID-19 regulations are irreconcilable with the Constitution, in that the procedure that was undertaken by the government to promulgate the regulations was tainted by the glaring absence of, and/or limited, public participation
Summary
It has been said that “conversation is the soul of democracy”.1 Over the centuries, the phrase has become less of a soundbite and more of an adage, backed up by a plethora of confirmatory evidence. But if conversation is the soul, participation must be its body and, by implication, an element without which democracy cannot exist. The strength of South Africa’s constitutional democracy has largely rested on the participation of the people. In his concurring judgment in Doctors for Life International v Speaker of the National Assembly (Doctors for Life (2006)) 3 , Sachs J asseverated that, during the constitution-making process, the Constitutional Assembly did not emphatically promote public involvement in law-making as a means to demonstrate “a rhetorical constitutional flourish”.4. The strength of the South African democracy was put to the test once again when COVID-19 emerged. The manner in which the Covid-19 issue has been dealt with by the government has raised a lot of concerns, about the capability of our public health system to contain the emerging health crisis within the Republic, and about the legality of the regulations themselves. SM & Burke DS “Historical perspective – emergence of influenza A (H1N1) viruses” (2009) 361(3) The New England Journal of Medicine 279 at 279
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