Former Public Protector Thuli Madonsela has added a strong voice to a growing number of people questioning the constitutionality of the government’s Covid-19 lockdown regulations in an open letter to President Cyril Ramaphosa. Her profound and thought-provoking sentiments are expressed with grace and respect in the letter in which she references from the French classic The Little Prince – the cover of which coincidentally looks much like a depiction of the novel coronavirus. – Nadya Swart
All policies, including Covid-19 regulations, must comply with the Constitution – Thuli Madonsela
In a profound and deeply honest open letter to President Cyril Ramaphosa, former Public Protector Thuli Madonsela gently reminds South Africa’s leader of the “need to remember that rules have to be reasonable – in the court of public opinion too.”
The rules referred to by Madonsela are those policies that government (President Ramaphosa “and his colleagues”) have designed and implemented in South Africa to contain the spread of Covid-19.
However, quoting from The Little Prince, a classic novella by French aristocrat, writer, and aviator Antoine de Saint-Exupéry, Madonsela says, “authority rests first of all on reason”.
“In De Saint-Exupéry’s classic, the prince narrates the story of a king he met on a tiny planet far away. Speaking of authority and public obedience, the king opined: ‘Authority rests first of all on reason. If you command your subjects to go and throw themselves into the sea, there will be a revolution. I have a right to demand obedience because my orders are reasonable.'”
This begs the question: “Can our government demand obedience in respect of Covid-19 regulations on these grounds?” Madonsela writes.
Madonsela describes how, when President Ramaphosa announced the 21-day lockdown, it was met with no-questions-asked understanding as “the need was self-evident”.
But, addressing the President directly, she says “the trouble started when you announced an indefinite extension of the lockdown“, giving rise to questions regarding the “draconian restrictions” and whether they were indeed the best that the government had to offer.
Madonsela mentions social injustice and reasonableness as “the two key challenges to the lockdown”, highlighting the fact that these are both protected in the Constitution. Further quoting from the Constitution, she says: “Everyone has the right to just administrative action that is lawful, reasonable and procedurally fair.”
She warns that Ramaphosa can expect more people – “some of the loudest voices… are your supporter” – to push back against perceived excesses (unreasonable regulations) as the essential oversight of parliament has been missing. She cites his newsletter from May 18 as evidence that he is aware of this.
She pleads with Ramaphosa to hear the cries of those “bearing the brunt of the draconian rules”, who feel “unheard” and unable to connect with the President in any way.
In what is perhaps her most thought-provoking statement to President Ramaphosa, Madonsela states:
People’s resistance to colonial and apartheid laws has taught me that when the law is unjust, violating it is not only justified as legitimate, it is exalted as heroic.
She says the king in The Little Prince learnt that to derive legitimacy, laws must also be just, fair and reasonable in the court of public opinion. Hence she suggests that Ramaphosa that takes a leaf from this book to “not only save the people from avoidable pain, but also preserve democracy”.