The spread of COVID-19 has subjected South Africans to measures that heavily impact their rights to privacy, and access to many services.
This is according to Free Market Foundation economic and legal analyst Jacques Jonker, who warned that the steps taken to curb the spread of the virus threaten civil liberties.
In attempts to limit the number of people exposed to contracting the virus, many countries have restricted activities such as the congregation of large numbers of people.
South Africa’s government has followed suit with its own set of regulations. However, it has been criticised for measures which are seemingly out of touch with international standards.
For example, whereas restrictions in the UK, Australia, and New Zealand still allow for the sale of alcohol and cigarettes, South Africa has placed a total ban on these items.
These countries also allow for online shopping to continue, in addition to public exercise.
Ecommerce in South Africa is limited to the delivery of certain goods, while exercise in public was banned under level 5, and is now limited to between 06:00 and 09:00 in the morning under level 4.
The government has also introduced legislation which includes the tracking of phone user locations and the criminalisation of coronavirus-related fake news.
Challenge the ban
Jonker said the prohibition on the sale of alcohol and tobacco products should be challenged.
“It is extremely paternalistic to ban them, and they create an environment conducive to black markets,” Jonker stated.
He explained there is historical evidence that the ban on liquor is a bad idea.
“History has taught us that prohibition doesn’t work. The prohibition probably also does not pass constitutional muster in terms of section 36 as the harm it causes might well be greater than any possible benefits that could accrue from it,” Jonker noted.
Another factor which the government has neglected to consider is the ban’s effect on people who are addicted to the substances, Jonker said.
He noted that the plight of addicts must be considered, as a sudden inability to consume alcohol could be extremely detrimental to their health.
“Experts have warned that forced cold-turkey withdrawal, especially as it pertains to alcohol, can itself cause health problems, even death, and also lead to violence,” he stated.
Fake news measures
Jonker said making the spread of fake news unlawful impedes the right to freedom of expression.
According to the Disaster Management Act regulations amended in March, anyone who creates or spreads fake news about COVID-19 could be prosecuted
Guilty parties face a fine or imprisonment of up to six months.
“It is impossible to overstate how dangerous it is to allow the government to determine what may be said and what may not, in any context,” Jonker stated.
He said a requirement in the regulations that the content must be made with the intent to deceive is not very comforting.
“The door is still open for the state to become the final arbiter to determine what constitutes fact and what does not, which is a very worrying prospect in a liberal democracy,” he explained.
Jonker said that attempting to control the flow of information in this manner could indicate an attempt to avoid criticisms of its policies.
“The issue is that the models used by the government to predict the effect of the virus were flawed by their own admission, and also did not include modelling of the economic effects concomitant with the lockdown.”
The fact that the government is refusing to release the models it uses to justify the lockdown measures for independent analysis indicates it is “hellbent on centralising information”, Jonker said.
“The rule of law requires clarity, and citizens have a right to know on what basis their rights are being limited.”
Privacy issues over contact tracing
Jonker further criticised regulations released in March which required mobile network service providers to supply the location data of their users to the government.
“Infringements on the right to privacy come with strict requirements that serve as checks and balances, such as expressly stating exactly what the data will be used for,” he said.
“If the government is to use track-and-tracing, as countries such as South Korea have done, it must justify the infringement on privacy in terms of section 36 of the Constitution, but so far the government has not done so,” Jonker stated.
He said that government cannot be allowed to merely track people like sheep, as this would give it too much discretionary power.
“But tracking and tracing the past movement of those already positively diagnosed could likely pass constitutional muster and constitute a just limitation on the right to privacy,” he added.
Citizens acting as police members
Jonker said citizens telling on each other for seemingly petty offences and the police acting on such reports also does not constitute action out of a true concern for public safety.
“A person jogging on the street does not threaten anyone’s safety by default, and the state is effectively assuming guilt on very flimsy grounds, especially when we consider the low number of infections so far,” Jonker said.
“People are being locked up for presumably victimless ‘crimes’. Owners of a grocery store were even arrested for selling coffee, even though the regulations actually allow for it,” Jonker said.
The fact that exercise is now allowed under level 4 is indicative of the arbitrariness of the bulk of the regulations, he added.
Jonker urged the public not to assume the government’s measures are of a benevolent nature, and to consider their implications for civil liberties.
“They usually are not stripped from people en masse in one go. It starts off gradually and picks up pace as a snowball effect takes hold.”
“Seemingly simple things such as designating arbitrary hours and locations in which exercise is allowed should be criticised for not being in unison with the rule of law. The state must always be held accountable.”
“One is tempted to say the benefit of government surveillance is safety, but I believe this sense of safety is exaggerated and an illusion since it opens the door for the stripping of civil liberties, which actually undermines not only freedom, but safety as well,” he stated.