One Year Later: COVID-19, Human Rights, and the Rule of Law in South Africa

By Chloe Reichel

South Africa has faced a devastating national COVID-19 epidemic, with over 1.5 million confirmed cases, and over 50,000 confirmed deaths.

The true toll, in terms of cases and deaths, is likely much higher. Research shows the country has recorded 150,000 excess deaths since May 2020.

The pandemic has also profoundly affected South Africans’ constitutionally recognized rights.

Since the start of the pandemic, the country has experienced varying degrees of lockdown, which, at different points, included a curfew, bans on the sale of alcohol and tobacco, and the closure of most businesses. The lockdown has been enforced strictly, resulting in hundreds of thousands of arrests for violations.

Mark Heywood highlighted some of these rights concerns last June in “Human Rights, the Rule of Law, and COVID-19 in South Africa,” a contribution to Bill of Health‘s digital symposium on global responses to COVID-19.

I spoke with Heywood in late March 2021 to get an update on the state of human rights and the rule of law in South Africa one year into the COVID-19 pandemic. Our conversation, which has been edited and condensed, follows.

Chloe Reichel: Maybe we could start where your blog post left off in June 2020. You concluded by saying that whether South Africa ultimately comes out on the right or wrong side of human rights remains to be seen. It’s been over nine months since you wrote that. I’m wondering about your update on that question.

Mark Heywood: Our ‘hard’ lockdown, which started on March the 26^th 2020, was introduced under the Disaster Management Act, which established a national state of disaster. It imposed very severe restrictions on movement, the consumption and sale of alcohol and tobacco, and criminalized unlawful conduct or disobeying those restrictions.

In those early months, there was a lot we still didn’t know about the infectiousness and modes of transmission of COVID-19. But also there was a willingness of people to allow limitations on their rights, in the interest of public health and the greater good. The lockdown was considered proportionate. There was a trust in government. And so people knew that their rights were being limited, but they accepted those limitations.

In the early days, the few attempts to challenge the limitations legally, through court cases, were not successful, because it was believed that government was acting within the bounds of the Constitution.

In those days, I think the jury was out as to whether the response of the South African government was proportionate and justifiable.

Now, we’ve just passed the first anniversary on the 5th of March of our first COVID case, it’s one year since the beginning of the lockdown.

And looking back and trying to evaluate whether the response was a constitutional response, we have to take into account I think two factors.

One is that the means did not achieve the public health ends. The drastic limitations on rights have not contained COVID-19.

In our country, as some of us predicted, we have a very large epidemic. Although it’s not described as such, I believe it’s one of the biggest and one of the worst in the world. Officially we have recorded 1.5 million SARS-CoV-2 infections and 53,000 COVID-related deaths. But records kept by our Medical Research Council of all deaths, and what they describe as “excess deaths above the annual average,” are above 150,000.

And secondly, it’s clear that the violations of rights went much further than just the limitations on rights to movement and so on, that the measures taken have impacted profoundly negatively on constitutionally enshrined socio-economic rights, to basic education, access to health care services, sufficient food, etc. And by impacting profoundly on socio-economic rights, they have also impacted on fundamental rights, such as people’s rights to dignity and rights to autonomy.

Nobody disputed that there would be some necessary limitations. But there wasn’t a dynamic  understanding within government or amongst their advisors (which has generally excluded civil society and human rights activists) about human rights in relation to health, and in relation to epidemics.

The only understanding was that limiting rights was necessary, not that conversely, expanding rights during an epidemic may be a means of epidemic control. And I think that there still is not that appreciation. And that is something that we learned from HIV.

To simply answer your question, 12 months into it, I think that our response has led to multiple serial and profound violations of human rights. They haven’t been tested, really, in the courts yet, except, for example, on that very important case over the National School Nutrition Program (NSNP), where the government was ordered by the High Court to reinstate the NSNP (see a report by the lawyers involved here).

But I certainly believe that the evidence is there to make a case that the response has not always met constitutional criteria that must be met for when you limit rights (in terms of section 36 of our Constitution). Former Constitutional Court judge Edwin Cameron has also questioned the proportionality of the response. [A useful database of regulations and Court orders can be found here.]

CR: You’ve mentioned the HIV response and how we’ve learned that by protecting rights you protect public health. Could you maybe give an example of what applying that learning would have looked like to the COVID pandemic?

MH: Though it seems quite different from the HIV epidemic, it’s the same principle at play.

What Justice Michael Kirby once termed “the AIDS paradox” was developed to say, people living with HIV are facing discrimination in access to health care services and access to schools; they face stigma and the threat of criminalization of HIV transmission. However, if we protect those people, instead of marginalizing them, we make it easier to prevent, to be open about the epidemic, to promote HIV testing, and disclosure, etc.

So, by protecting the rights of people with HIV, we protect people who don’t have HIV.

That underlying principle can be adapted to the COVID-19 epidemic.

So, let’s say that we know that there’s a much higher risk of COVID-19 transmission in congregate or overcrowded communities, where there is a denial of fundamental socio-economic rights, which are recognized in our Constitution — water, housing, food.

If it had been accepted that a significant economic cost could be incurred to fulfill those rights at this moment, because it would increase autonomy, and the ability to follow public health messages around hygiene and social distancing, then we would have put people in a better position to avoid being infected and to avoid infecting other people.

A great deal of expense, tens of billions of rands, was incurred on limiting rights. If that was the case, why could we not consider a great expense in realizing rights, particularly if it might have been a more effective means to control COVID-19 transmission?

CR: And then, in terms of economic rights, are you envisioning a government policy of providing people a basic income during the duration of the lockdown?

MH: Yes. And that is one of the debates now.

There was a special fiscal stimulus announced in April 2020. Everyone has a right to social security in Section 27 of the South African Constitution, and in May 2020 the government introduced a new grant, a special COVID grant of 350 Rand a month. There have been nearly 7 million beneficiaries of the COVID grant.

And undoubtedly, it’s made a difference. But, I would argue that it has been insufficient. After all, with 350 rand, that is about $25, more or less, per month, per person. There’s not a great deal that you can do with that other than prevent yourself from starving. This grant is due to end in April 2021 and yet there is still a huge need.

So, there is an argument now to be made for, and is being made by human rights activists, for a universal basic income guarantee. Because the devastation that has been caused by COVID-19, and by the lockdown has been enormous. Surveys show we’ve definitely lost one and a half million jobs, we’ve definitely seen a serious rise in food insecurity, and in hunger, and in malnutrition — rights are implicated in all of these, and government has a duty, in a country like ours that is founded on human rights and social justice, to do something about.

CR: And I just wanted to briefly ask about the state of the issues of police brutality and arrest that you had mentioned in your initial blog post.

MH: Well, the problem has continued. I think I mentioned in the blog, 200,000 people had been arrested. That figure has increased to at least 400,000, according to the Minister of Police.

Those 400,000 people now have criminal records. Many of those arrests were arbitrary.

And there have been instances where it goes beyond arrest. People have lost their lives. At the last count that I saw, at least 12 people had died as a result of police brutality during enforcement of COVID regulations. Some of these are still being investigated by the Independent Police Investigative Directorate.

On paper, unlike in other countries in Africa, like Zimbabwe, there has not been a regression on rights. In fact, our government has talked about the need to respect the rule of law and, where instances of police brutality have been publicized, they have been condemned.

So the problem is not so much that there has actually been a formal closing of civic space involving rule by law (instead of rule of law) and changes to law, which is something that has happened in many other countries and has been documented in Amnesty International’s latest human rights report.

It is more that the State of Disaster and the restrictions have become an excuse for police misconduct, but also political misconduct involving widespread corruption and theft of public funds intended for PPE, etc., due to reduced accountability.