The Helen Suzman Foundation is litigating around COVID. It does not object to any particular action taken by the state. It objects to the indefinite use of the Disaster Management Act, which places very general legislative power in the executive branch of government, to devise and direct all these actions. It wants Parliament to construct a fit-for-purpose framework that regulates the state's response to the particular issues presented by the virus. Just as we do not empower Ramaphosa and Dlamini Zuma to use the Disaster Act to manage crises like domestic violence, corruption, pollution, homelessness and racism, but rely on specific legislative tools that have their origin in Parliament to target these problems, so we need legislation that deals with COVID.
In late July, the HSF applied to the High Court for an order compelling Parliament to pass legislation containing this framework. The application was dismissed. It is appealing the order and three weeks ago the application for its leave to appeal was heard.[1] During the hearing, the court put a hypothetical question to one of the senior counsel representing the state. If the virus is still around in 10 years, the court asked, will the state still be using the Disaster Act? Counsel answered in the affirmative: for as long as this "invisible enemy" exists, the National Executive will legislate our lives through the Act.[2] Why? Ramaphosa told us at the start: "We are now in a war. We are in a war zone and our rights will inadvertently be affected and restricted for our own survival."
This is a remarkable assertion of executive power. It has no equivalent in our democratic history. To grasp its significance we must look outwards, to a structurally identical assertion made in another, still ongoing war against a different, just as invisible enemy: the US war on terror.
* * *
In an essay written about a year after 9/11, Judith Butler, the American philosopher and critic, said the following about the practice of indefinite detention, whereby suspected terrorists were locked up by US executive authorities without those rights typically afforded to detained persons, like due process and legal counsel:
"Although the justification for not providing trials . . . is that we are in a state of national emergency, a state understood as out of the ordinary, it seems to follow that the state of emergency is not limited in time or space, that it, too, enters onto an indefinite future. Indeed . . . since the problem of terrorism is no longer a historically or geographically limited problem . . . this means that the state of emergency is potentially limitless and without end, and that the prospect of a state power in its lawlessness structures the future indefinitely. The future becomes a lawless future, not anarchical, but given over to the discretionary decisions of a designated set of sovereigns . . ."[3]
In three essential respects, our government's attitude towards the virus and its power in relation thereto is indistinguishable from Bush and Cheney's attitude to terrorism. Like Bush and Cheney, it seized on the opportunity presented by an "unprecedented" threat to "our survival" to justify limiting basic rights. Like them,[4] it used this threat and the need to act efficiently and effectively[5] to transfer constitutionally-allocated power from the legislative arm of government to the executive. And, like them, it means to rely on the amorphous nature of the threat to do this indefinitely.
When power is seized and exercised in this way, Butler explained, in words that are just as applicable to our context as they were to her own:
"[the executive] becomes that instrument of power by which law is either used tactically or suspended, populations are monitored, detained, regulated, inspected, interrogated, rendered uniform in their actions, fully ritualized and exposed to control and regulation in their daily lives."[6]
Yet, in one respect, our situation is even graver than this structural overlap with the US war on terror suggests. For if there is any real difference between Bush/Cheney and Ramaphosa/Dlamini Zumu, it is one of reach, with the latter extending further than the former. Whatever the gravity of the crimes committed under the pretext of keeping Americans safe, they were at least always committed against external threats—those labelled terrorists, or suspected or profiled as such—and beyond US borders—in Guantanamo Bay or Iraq or Abu Ghraib. In this sense, lawlessness was contained and the seizure of power by and its centralisation in the executive was limited.
Not so with the harm being done under the pretext of our government keeping us safe from the virus. For the nature of this "out of the ordinary" threat means that the enemy is not external. It is always-already within society and its individuals. We all share the same profile: all equally exposed to harm and liable to cause it, we are all both potential victim and suspected villain.
This means that there is no way to externalise the effects of the state's "war on the virus". Rather than limiting lawlessness to foreign lands and army bases and those deemed alien, we now face a future of comprehensive lawless state power, penetrating deep into our domestic lives. Indeed, it is because we are all both victim and villain that we have been "detained" indefinitely—now some 250 days into our 21-day lockdown. It is because we are all equally threat and target that our police and soldiers beat and kill the most vulnerable amongst us—all quite regrettable, of course, but in war there will always be collateral damage, some heavy-handedness, especially when the state so enthusiastically wants to keep us safe.
* * *
All this would perhaps not be so bad if there were any generalised pushback against this desecration of our constitutional order.
But just as respected outlets like The New York Times not only failed to hold the US government to account, but acted as propaganda machines for war,[7] so many in our media failed to do the only thing that it exists to do. Rather than asking difficult questions, they heralded politicians as heroes, lauding our "wartime" President for his "bravery" in "invok[ing] the powers of his office to ensure the well-being of the people". Instead of interrogating the militarisation of society, they "widely welcomed" it, citing this as proof that "government [was] serious about" the virus. Intoxicated by their own rhetoric, they failed to consider the facts soberly, instead propagandising about threats to "our entire existence". Not just refusing to engage those who suggested that this was not a "tsunami" "that has the potential to completely engulf or destroy us", or raised concerns about or mourned the losses resulting from the state's choices and actions, they wrote op-eds shaming them: There's a pandemic, you know![8] Instead of treating science as a tool that can inform but never fixes democratic choice and action, they gushed over all our "world-class", "patriotic" and "pre-eminent scientists", presenting their "knowledge and understanding [and] power" as our only source of "hope". In commenting and reporting in this way, they manufactured the conditions in which democracy can be replaced by technocracy. "Democracy helps", they said, but what "matters most" is that we and our designated sovereigns "slavishly" follow the science.
I would like to say that there will be a reckoning for our media, but The New York Times appears to be doing quite well.
Our opposition hardly fared better. Much like the Democrats supported Bush's wars, so the EFF and DA originally and ultimately stood beside our wartime President. Like any narcissist without power, the EFF made do by lusting for its opposite: the perpetual domination of all. True, the DA initially spoke out against allowing "the temporary to become permanent", and just the other day it said that it is "against lockdowns". But its statements bear little relation to reality. Not only has the DA failed to initiate any process in Parliament to pass legislation fit for COVID, when it was actually required to act after the Western Cape's recent rise in cases, it announced that its "biggest concern" is not for its people but its "healthcare platform", and it threatened "to come in with law enforcement" if its nudges do not have the desired effect. In failing for 9 months to facilitate the return of power to Parliament, by brandishing "blunt instruments" that can be "applied and suspended at will", as Butler put it, its mode of government is structurally identical to the ANC's: "exploitative, instrumental, disdainful, peremptory, arbitrary".[9]
I would like to say that there will be a reckoning for our opposition, but Joe Biden, despite the deaths of hundreds of thousands of Iraqis resulting from his orchestrated lies and support for regime change, appears to be doing quite well.
* * *
Near the end of Butler's essay, she wrote that she feared that the "indefinite detainment of prisoners on Guantanamo" will "come to serve as a model" for future "branding and management" of those deemed by an unaccountable and non-transparent executive to be threats to our well-being. She worried that if "this extension of lawless and illegitimate power takes place, we will see the resurgence of a violent and self-aggrandizing state sovereignty at the expense of" any real commitment to creating a world in which people can live rich and meaningful lives.[10] This should be our fear about COVID, that in the name of preserving lives and livelihoods it will become a model for future governance: "We are now in a war", Ramaphosa told us, "and our rights will inadvertently be affected and restricted for our own survival."
But, you might say, this self-aggrandising, "command" form of governance will not last, for there are vaccines around the corner that will change things. Not so fast. For the narrative justifying all this lawlessness is shifting. It took a few weeks for it to shift from our needing time (21 days) to "flatten the curve to delay the onset of COVID-19 infections", to our then needing to "take bold steps to beat the virus" (250 days and counting). A second narrative shift is now occurring. It is taking longer, but it will be longer lasting and more destructive.
The Mail & Guardian recently published an article titled, "How to escape the 'era of pandemics'". In it we are told about "reservoirs of pathogens with pandemic potential". We are dutifully informed that there are "an estimated 1.7 million undiscovered viruses thought to exist in mammal and avian hosts", of which "540 000 to 850 000 could have the ability to infect humans." Pay attention to stories that take this form. They do not just report the facts. They serve a particular ideological and justificatory function. Through shock and awe, they prime us for what governments everywhere are calling "the new normal", the idea that "there is no alternative" but to "reset" and "reconstruct our lives". They do this not because there is any coordinated, nefarious effort to control us. It is far worse than that. They do this because this is where the framing language of war together with the anxiety generated by our emerging culture of survivalism always leads.[11]
So, just as the US's forever wars know no end because terror is less a fact about the world, than it is a description of our attitude towards it—as being filled with alien others who long to destroy our way of life—so the new normal will not be something that is forced on us by the facts. Tomorrow's forever wars, the indefinite need to take bold steps—"pre-emptive strikes", or "circuit breakers" that will be put in place "until further notice"—to prevent the next pandemic, or delay matters a little while longer until the next vaccine is produced, will be a political choice. But it will be a choice informed by the terror inspired by our newfound, manufactured fear of a world teeming with reservoirs of pathogens with pandemic potential.
* * *
How might we break free from this lawless present, this world given over to the indefinite exercise of discretionary power, all justified because it is for our own good—to preserve lives and livelihoods—but is in truth—through its reduction of persons to little more than body counts and bank accounts—a sustained denigration and impoverishment of all that makes life worth living?
The answer is simple: return power to its proper location, Parliament; return to a responsible form of journalism, in which commentators and reporters strive to hold government to account; and, return to a plural, democratic form of politics, where parties do not merely vie for power on the basis that they can better secure our survival, but present to the electorate alternative, substantive, positive visions of the future. But the simplicity of this answer is only matched by the difficulty in implementing it, for on all these fronts 2020 has witnessed catastrophic institutional failure.
Until these failings are remedied, our future can only be dark. The era of pandemics will be like the war on terror, but writ large—a world structured by illegality, arbitrariness, abuse, violence, suffering and loss. To sustain the conceit that this is for our own good, we will not be permitted to mourn this self-inflicted ruin too openly, lest this prompt questions about its ultimate justification. But the reality of our choices and actions will inescapably haunt us. Because of this, both private and public life will fluctuate between passive, generalised melancholia and eruptive, disarticulated rage—a kind of living that is other than life.
Without more, this will be our new normal.
Matthew Kruger
Research Fellow
mattkruger1234@gmail.com
The views of the Research Fellows do not necessarily represent those of the HSF, but are published under our auspices in order to enhance and broaden public debate, which is part of the mandate of the HSF.
[1]After producing this brief, the High Court dismissed the application for leave to appeal. The HSF is currently considering its legal options.
[2] Albeit not important for our purposes, they could alternatively do this through an equivalent executive instrument.
[3]Judith Butler, Precarious Life: The Powers of Mourning and Justice (2020) 64-5.
[4]Ibid 94-5.
[5]It is important to understand what must be presumed before claims to efficiency and efficacy can be sustained. They can only sensibly be made if we grant two premises. First, there must be a shared goal. Second, the shared goal must be capable of being expressed in quantifiable, measurable terms. This is why Ramaphosa frames COVID as existential. In doing so, he makes plausible the idea that what matters most is preserving life (shared goal), an ideal that we can measure for success or failure by counting how many people died today (quantitative).
[6] Butler (2020) 97. Without any change, she could have been writing about Ramaphosa's most recent speech: "We have instructed law enforcement officials to ensure compliance with the law, by owners, controllers and managers of workplaces, shops, institutions and buildings to ensure social distancing and wearing of masks. Taxi operators are also required to ensure that all their passengers wear masks.In addition, each one of us will be required to comply with the curfew times." Or, about this statement by the MEC for Health in Gauteng: "There shall be heightened surveillance all over the place as well as aggressive health promotion and communications activities . . . If needs be, roadblocks for screening purposes will have to be mounted at strategic areas as was done during the first surge, particularly after the festive season . . . Those identified with symptoms of the disease will immediately be isolated and tested." Or, indeed, about Mkhize's flaunting of power when he tweeted about visiting a Cape Town bar to "encourage management to comply with regulations". Or, lastly, about the Orwellian-sounding "awareness and enforcement campaign" launched by the Western Cape government, in which "law enforcement agencies have inspected over 8,200 businesses to check if COVID-19 safety protocols are being followed" between July and October 2020.
[7] Butler (2020) 15-6.
[8] The characterisation of critics as "covidiots" bears a disturbing parallel to the Bush administration's effort to dehumanise its prisoners by characterising them as "mentally ill" (ibid 72-4). If they have brain damage, it becomes far easier to tweet one's schadenfreude when some of them die from the virus: like here and here.
[9] Ibid 83.
[10] Ibid 100.
[11] On the language of war, see Judith Butler, Frames of War, When is Life Grievable? (2016). For the culture of survivalism, of which Butler's ethics and political prescriptions, structured as they are by the concepts of precariousness and precarity, are examples, see Christopher Lasch, The Minimal Self: Psychic Survival in Troubled Times (1985).
