The South African High Court, Earlier this week,passed a momentous decision declaring the South African Government’s Lockdown regulations Constitutionally invalid.
The decision has been applauded as a victory for individual Liberty against Paternalistic Government inteference.
Meanwhile, those who have criticised the decision have largely focused on the Court’s inability to deal precisely with how each specific Regulation that has been struck down is unjustifiable rather than adopting what has been described as a blanket approach to striking down the Regulations.
In essence, the foundation of these Arguments is whether or not the Court applied the Limitations Clause in s36 Of the South African Constitution correctly in performing the required but difficult balancing act between Individual Liberty and State Power.
A previous decision in the matter of Khosa Mphephu & Others Vs The Minister Of Defence Of Others handed down in May 2020 also addressed the question of Individual Rights vs State Power in the context of the Coronavirus pandemic.
The Court in this decision correctly identified a very important element in considering the balancing act that was not considered in the latest Liberty Fighters Network decision.
The Khosa Judgment opens with the recognition that essentially, the underlying question before the Courts when they are asked to interpret the Law in Coronavirus cases is the nature of the Social Contract.
Fabricius J correctly opens his decision with the following:
‘It has long been debated by renowned Philosophers of what the terms would be of what they called a ‘Social Contract’ between the populace and a legitimate government…Kant was of the view that such a Contract implied an idea of reason that which obliged every legislator to frame its Laws in such a way that they could have been produced by the will of a whole nation and obligate each and every Citizen as if they had consented’.
This goes to the heart of the issue, and while its a remarkable example of the Courts recognising the nature of the responsibility at hand, it is also disappointing because it represents a lost opportunity for the Courts to apply African Philosophy and Communal values of Ubuntu in interpreting and developing the Law for application within an African context.
Unlike the Individualistic and Libetarian Renaissance era Philosphy epitomised by Nietzche and Voltaire, African Philosophy is more communal in its orientation.
This is a strength and not a weakness.
As a result, a consideration of African Philosophy in Coronavirus matters may also benefit the Courts in determining how to strike an appropriate balance between Individual Rights and State Power.
We are in Africa after all, and these decisions must be applied in Africa.
It therefore does not appear sensible to make Legal decisions that affect people in Africa without considering their own African Ethos. That would be like a European Court making an important Legal decision based on Chinese Philosophy without regard to its own rich Philosophical Heritage.
Ultimately, Africa is not an Island, and African Ubuntu Philosophy should be considered in light of all other relevant Philosophies in order to arrive at what is the best decision in the circumstances.
However, it does not appear to be favourable for the advancement of Democracy in Africa if Legal decisions in African Countries continue to bear a Colonial Philosophical imprint.
This is perhaps a Blind spot that ought to be considered.
In the final analysis, the Courts are faced with a difficult task, and in as much as the Coronavirus Pandemic has created a ‘new normal’ in the way we live and work, this should also extend to the way our Courts make Legal decisions in Africa for African people.
In a sense, we are faced with a Cultural Revolution that demands a new way of doing things in so many areas of Life, and the Law should be no exception.
However, despite these drawbacks, I would say the Courts and Governnment are doing their best to deal with what is a novel situation for all Humanity.
In The Century Of The Self, Adam Curtis explores how the Individualistic Philosophy of the Renaissance era has impacted our modern world.
There is a sense that our world has reached the limits of this era, and today we are required to invent a new Culture in all spheres of life.
