After calls for a state of emergency to deal with protests and looting in South Africa, a message appeared on social media claiming that an emergency declaration would give the president’s powers to the military and put cooperative governance minister Nkosazana Dlamini-Zuma in charge.
Constitutional law experts told Africa Check this was false. A state of emergency would give the president more power, and he would retain control of the military.
The current state of disaster to control Covid-19 does give the cooperative governance minister limited new powers. But she would not “take over”, as the message claims, under a state of emergency.
“If a state of emergency is declared the military takes over the rule of the land and the state president is stripped of his powers,” it reads. “In terms of the Disaster management Act Nkosazana dlamini Zuma will take over giving power to the Zuma’s.”
South Africa saw a week of violent protests and looting after Zuma was taken into custody to serve a 15-month sentence for contempt of court. At least 337 people were killed and 1,500 arrested. The violence led to calls for the government to declare a state of emergency to restore order.
Is the message an accurate reflection of what would happen if a state of emergency was declared in South Africa? We checked.
Viral message is ‘absurd’
He explained that under a state of emergency, governance still lies with parliament and the executive. But the presidency is given more powers – they are not “stripped” away.
The South African constitution and the State of Emergency Act allow the president to declare a state of emergency only when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency”. It can apply to the whole country or a specific area.
“It gives the president Cyril Ramaphosa more power to make regulations,” de Vos said.
But he added that there were limits to the presidency’s additional powers under a state of emergency: “The extra powers can only be used if they are necessary to deal with the emergency. You cannot make regulations about things that are not directly linked to trying to deal with the emergency.”
Michael Evans is an attorney and partner at law firm Webber Wentzel with experience in local government, and administrative and constitutional issues. He told Africa Check that the military would not take over during a state of emergency.
“The president is still the one who [delegates] responsibility and [confers] power and he can at any time withdraw it.”
State of disaster during Covid pandemic
The message also claims that “in terms of the Disaster management Act Nkosazana dlamini Zuma will take over giving power to the Zuma’s”.
South Africa is currently under a state of disaster, which was declared on 15 March 2020 in response to the Covid-19 pandemic. The Disaster Management Act, which falls under Cogta, dictates which regulations are enforced. At the moment these include mandatory mask-wearing in public, a curfew, restrictions on gatherings and an alcohol ban.
But De Vos said the act was “completely separate” legislation that could not override the constitution.
Evans told Africa Check that while the state of disaster has given Dlamini-Zuma powers that she would not ordinarily have as Cogta minister, she does not take the place of the president.
He said there were key differences between a state of emergency and a state of disaster.
A state of emergency has more parliamentary oversight than a state of disaster. Under the constitution, parliament must review a state of emergency after 21 days.
“One of the problems with the national disaster has been that once a national disaster has been declared there is very little parliamentary oversight, which we’ve seen in the last year and a half,” Evans explained.
Another major difference is that the public still have all of their basic constitutional rights under a state of disaster. But these rights can be limited under a state of emergency.
No state of emergency since apartheid ended
South Africa last saw a state of emergency under the apartheid regime, in 1986. Evans, who was detained three times during apartheid-era states of emergency, told Africa Check the current state of emergency act was a “much better situation”.
“Under the apartheid era we had no constitution so there was absolutely no protection. You could detain people, for example, indefinitely under the emergency in the apartheid era,” he said.
“Now, if we have a state of emergency it will be very different because you will still retain a number of your constitutional rights and some of the other issues are quite heavily regulated.”
The constitution includes a section setting out which rights can be limited under a state of emergency, and to what extent. Importantly, the right to life and human dignity are entirely protected from limitation.
But De Vos warned that a state of emergency should not be taken lightly, as other rights could be limited.
“They could, for example, allow people to be detained for 30 or 60 days without a trial.”
The government could have the power to limit the media and communication, such as by shutting down the internet, if it is deemed necessary to deal with the emergency.
Conclusion: No accuracy in claims about state of emergency in South Africa
A viral message on WhatsApp and Facebook warns that a declaration of a state of emergency in South Africa would strip powers from the president and give them to the military. It also claims that under the Disaster Management Act, Cogta minister Nkosazana Dlamini-Zuma would become president.
Two constitutional law experts rubbished these claims.
Under a state of emergency the president is given more power and retains control of the military. The current state of disaster to deal with Covid-19 does give Dlamini-Zuma more power than before. But she would not become the president under a state of emergency.
We therefore rate the message as incorrect.
The experts warned, however, that a state of emergency should not be taken lightly as it could allow basic rights to be limited.