State of emergency allowed only under threat of war, invasion, disaster, says law expert Pierre de Vos

There are growing calls for the government to declare a state of emergency amid violent protests in parts of the country.
There are growing calls for the government to declare a state of emergency amid violent protests in parts of the country.
Image: SANDILE NDLOVU

As calls mount for the declaration of a state of emergency in SA amid violent protests, constitutional law expert Prof Pierre de Vos explains what this entails and what steps the government should take before making a proclamation.

“A state of emergency is allowed only if the life of the nation is threatened by war, invasion and disorder,” said De Vos.

The declaration, he said, must be necessary to restore peace and order.

“It [declaration] will last 21 days, unless it is approved by the National Assembly for a longer time. It can be extended for three months at a time.

“When you have declared the state of emergency, it gives the president extreme powers to issue regulations such as the state of disaster. It’s almost like government by decree,” he said.

A 13-year-old boy was shot and killed as members of the Katlehong People's Taxi Association have taken it upon themselves to protect malls around their communities. According to members, a group of 500 taxi drivers have mobilised to defend malls in the area.

De Vos explained that unlike the state of disaster, the regulations in a state of emergency do not — to some extent — have to comply with the provisions of the bill of rights.

“The rights can be ignored, but some can’t be taken away, such as the right to equality, life, dignity, freedom and security of a person.”

The government would be limited in imposing detention without trial under the state of emergency.

 “Censorship can be imposed. You can shut down the internet or censor what can be published. A state of emergency allows for quite extreme measures, but these must be necessary to restore peace and order,” explained De Vos.

The state of emergency, De Vos said, could not be willy-nilly as it took away most rights.

“The right to life cannot be taken away by any state of emergency.”

The following are steps government should take to declare a state of emergency:

  • The president can proclaim in a government gazette the state of emergency in a republic or a particular area;
  •  He must set out the reasons for the state of emergency and submit this to the National Assembly; and
  •  If after 21 days, the state of emergency continues, it must be approved by the National Assembly.

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