COVID19: a Mysterious Disease Shouldn’t Result in Mysterious Decisions

So far, the South African government’s approach to access to information and transparency in its efforts to manage the spread of the Covid-19 pandemic has not been stellar. I’d rank them a two out of 10. But based on what, you might say? What does it take to get to a three? What’s your index? What’s your expertise? What data, ma’am? Well… exactly. See what I did there?

General access to public information has had some wins during the Covid-19 crisis. The early intervention by the South African government to centre reliable, government information on services — and oblige South African websites to link to it — is an important counter to the risks of misinformation. On an ordinary day, this kind of service-focused information is often difficult to source for citizens (I dare any cynic on this issue to try to get the current contact details of information officers for different departments), and providing it centrally is important for building citizen trust.

But the wins may have ended there. There are reports that decision-makers and scientists are having trouble wresting data from the Department of Health, directly impeding the ability of innovations to help combat the spread of the disease from being created. On Wednesday morning some of the modelling data was finally released to the public for the first time. It is a few PowerPoints, scant on underlying assumptions, provided to the media almost two months into a complete nationwide lockdown, and 76 days since Patient Zero was confirmed.

Previously, news reports had said this information was being kept under wraps to “avoid panic”. Since this momentous, risky “release”, however, the public seem to have managed to keep it together; so far there has not been a single report of members of the public running riot through streets while spraying neighbours in the face with diluted hydroxychloroquine from their children’s water pistols.

And this data only tells us what is available. It doesn’t necessarily tell us about why decisions are being taken. We talk about transparency and accountability, because accountability shifts us from observers to participants. South Africans are not subjects of government. Instead, government is a subject of the Constitution, which creates very clear guides on the centrality of information to our governance.

As others have so rightly reminded us, we are meant to be governed by a “culture of justification”. Both practically and constitutionally, the provision of information forms a foundational tenet for ensuring accountability of the state to the citizen. Information is a central component to two key tests of relevance to the management of the country through this crisis: the justifiable limitations of rights, and the rationality and other rule of law reviews of government action.

Looking first to the impact of decisions, rights such as freedom of movement or privacy, can only be limited if reasonable and justifiable to do so. But even before we consider general limitations clauses, there are internal limitations within the Disaster Management Act itself that are relevant to determining if that power is being exercised rationally. The Minister of Co-operative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, in issuing Directions related to the management of Covid-19, can only do so if it is “…necessary for the purpose of:

1. assisting and protecting the public;

2. providing relief to the public;

3. protecting property;

4. preventing or combating disruption; or

5. dealing with the destructive and other effects of the disaster”.

Both this internal limiter, and the section 36 limitations analysis, speak to necessity and justifiability. We need information and evidence, of course, to answer these questions — but not just any information, information that speaks to whether these limitations of rights are based on proper reason.

Consider for instance at the recent decision of the French Data Regulator which, when considering the threatened invasions to privacy by a proposed application for contact tracing called “StopCovid”, held that all other compliance aside, they couldn’t support its implementation until actual evidence could be provided to show it helps combat the disease.

Just because something seems like a good idea, doesn’t mean it’s based on evidence — especially context-specific evidence (think for instance of that misguided time you got bangs on the basis of a picture of Zooey Deschanel in 2011: that picture was evidence that bangs were cute, but not that bangs were cute on you). Our Constitution in its limitations analysis includes consideration of “less restrictive means” too (an assessment in relation to many of these Directions worth judging in particular), which also calls for a level of detail in providing justification that includes comparison and nuance.

Information is thus essential for making these assessments, and for exploring the rationality of the decisions being made. But does the law compel the provision of the information to the public that is needed to decide on these questions more directly? Separation of powers becomes an important consideration here. The Promotion of Access to Information Act for instance expressly excludes Cabinet records from its ambit, thus preventing access to records and data that might be informing the decision-making of the Cabinet Members consulted prior to the issuing of Directions (PAIA has other shortcomings that would limit its utility too, such as a lack of an urgent process for requesting).

Administrative law requires written reasons for decisions to be provided to those affected by decisions under the Promotion of Administrative Justice Act, but these relate to administrative action, which again does not include executive action. The ability to approach the National Command Council (NCC) for reasons for its decisions is delightfully inhibited by our inability to determine whether it is, or isn’t, taking decisions. Both PAIA and PAJA, if applicable, would allow for access to information and decisions outside of a court process.

But fear not! The Constitution’s tentacles are ever sticky, and searching for rhyme and reason. In Democratic Alliance v President [2017] ZAGPPHC 148 the High Court held that — if a review application is under way — Rule 53 of the Uniform Rules of Court can be used to compel the executive to provide reasons for the decisions it has taken. The understanding being that, if executive action can be reviewed, obviously reasons and information can be compelled to render a proper review is possible (so like we said earlier, the information is an essential part of the accountability assessment).

The decision went on appeal to the Constitutional Court, which did not adjudicate further on the matter because the main substance of the case was at that time moot, but Justice Jafta issued some cautions on the expansion of the rule in a minority judgment that should be flagged. Nevertheless, this means that Rule 53 could be used to compel the tabling of reasons as soon as a review proceeding is launched (I mean, just sayin’). If the NCC wasn’t the Schrödinger’s cat of decision-making, I’d posit that its deliberations could also be accessed through Rule 53 if a decision of theirs was being reviewed, because of the decision relating to deliberations in Helen Suzman Foundation v Judicial Services Commission [2018] ZACC 8.

But the point is, we shouldn’t need to launch review proceedings to get this information. The structure of the Constitution and our laws tell us that the decisions of the executive, and ultimately in terms of the Disaster Management Act, and Minister Dlamini-Zuma, must be justifiable and rational. And we cannot tell if that is the case, without adequate information and reasons (I’m just going to leave the word “slip-slops” here).

There are very strong feelings from the public on the rightness or wrongness of decisions being taken but, without information, we’re relying very strongly on political opinion or even instinct to determine this (and lest I remind you about the Zooey-bangs incident, our instincts are not always self-preserving). The public is owed this information to hold the executive to account on these decisions, however, they chose to do so.

I remember doing a self-defence course and the instructor told us never to get in the lift with a man alone. One of the women in the group responded that she would feel too bad insulting a man who could be a good guy. The instructor pointed out that a good guy wouldn’t be insulted.

The decisions being taken, supposedly in our best interests, should be accompanied both by the data, information and the reasoning behind those decisions. If the decisions are good, there’s nothing to hide and only trust and legitimacy to gain. And if they’re bad, we need to be able to challenge them. I promise we can handle it, either way.

This blog post was first published on the Daily Maverick

The views expressed in this post are those of the author and do not necessarily reflect the position of the Atlantic Fellows for Social and Economic Equity programme, the International Inequalities Institute, or the London School of Economics and Political Science.