In a webinar hosted by Prospect magazine on Tuesday night, titled “Democracy and the Rule of Law in the Age of Covid-19”, Lord Jonathan Sumption, a former judge of the UK’s supreme court, disclosed that there were certain of the UK’s lockdown regulations with which he refused to comply, that they struck him as absurdities.
That’s a fairly extraordinary admission from a former judge, even when said mellifluously, as the Brits are wont to do, so that the most subversive statements are uttered as if they were eminently sensible.
Lord Sumption was referring to the idea that for law to command adherence and respect it must be backed not only by superior policing power but, perhaps more importantly, by moral authority.
That’s of course where things get murky. Asking each of us to determine what is morally defensible in the midst of an unprecedented global disaster seems to be an invitation to chaos and confusion.
We, in SA in particular, with diverse communities and conditions and faced with such demanding lockdown regulations, can and have pointed to many issues that call into question the government’s moral authority: the brutality of security forces under lockdown, business shutdowns, the liquor and tobacco bans, and so on. But while a population as fractious as ours means that there are plenty who contest government’s moral authority on self-interested topics, there hasn’t yet been a coalescing of a broad front contesting it.
Were there to be such a front, it’s hard not to think Friday’s judgment in the Gauteng High Court on the national school nutrition programme (NSNP), and the issues it frames, would be a moment of such coalescence. Equal Education and two school governing bodies brought the case against the basic education minister and education MECs of eight provinces, seeking a declaratory order that they had violated their constitutional and legal duties to ensure the NSNP provides a daily meal to all qualifying pupils, whether attending school or studying away from school as a result of Covid-19. They also sought an order of immediate provision of such meals and the granting of a supervisory interdict to oversee design of a plan for implementation, and implementation itself.
The applicants were successful. That is unsurprising. No constitutional system could condone the cessation of so essential a programme in today's circumstances. What is surprising, repugnant even, is that it took a court order to compel the authorities to continue to implement the programme.
The NSNP, like SA’s social grants system, is a product of our first democratic government. They stand like leitmotifs of our constitutional democracy, seeking to make real the constitutional cornerstone of human dignity, the achievement of equality and the advancement of human rights and freedoms. They are intended to ensure that those who are most vulnerable and destitute in our country get a chance to have the other rights and freedoms have actual meaning in their lives.
As the Equal Education judgment makes clear, more than 9-million of SA’s children are served by the NSNP. Its cessation under lockdown means the government was distributing more food daily to the poor before lockdown than it has been doing under lockdown, a time when even the most oblivious couldn’t fail to realise that hunger and poverty are fast-growing, not diminishing.
Court judgments are generally better for capturing the distillation of legal principles than intensely poignant human anguish, and yet you can’t help being struck on reading the judgment by the account of grade 12 learners, who being pupils in a grade allowed to return to school, are provided with nutritious meals but are guilt-ridden, knowing their siblings back home are forced to go without.
That guilt, unfairly imposed, speaks to a moral authority marked by its chilling absence among all those who are party to the continued suspension of this programme when all along they had the funds and means to ensure this was not so.
• Fritz, a public interest lawyer, is CEO of Freedom Under Law.
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