States of Emergency - Centre for Policy Alternatives

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 requirement for any act of commission or omission,
central to any conception of serious criminal liability. The Lirst
proviso to Regulation 8, however, provides for exemptions to
engage in approved transactions in certain circumstances such as
the furtherance of peace and the termination of terrorism with the
written permission of the Competent Authority appointed by the
President. This will give the Competent Authority, sweeping
discretionary power over the activities, inter
 alia, of civil society
organisations including those committed to human rights, national
reconciliation and also the media. Such powers will give the
government excessive control over civil society organisations
which is incompatible with the freedom of expression and
association and other freedoms which are necessary for the
independence and autonomy of such organisations.
The dangers of these regulations are made worse by the fact that
an appeal from the decision of one presidential appointee, the
Competent Authority is to be made to an Appeals Tribunal
consisting entirely of other presidential appointees, the
Secretaries to the Ministries of Defence, Finance, Nation‐Building
and Justice. There are two principled objections to this
arrangement. The Lirst is that it is in breach of international law,
which requires a right of appeal from an administrative decision to
an independent judicial body. Secondly, conferring what amounts
to at least quasi‐judicial powers to persons in the executive branch
of government is a violation of the principle of separation of
powers and is an unconstitutional encroachment into the judicial
sphere. Furthermore, it is fanciful to believe that a tribunal
consisting of Secretaries to Ministries can function as an
independent appeals body.
The wide immunity clause, Regulation 18, also gives rise to
serious concern. It seeks to provide immunity from suit to public
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