On 4 August 2021 the African Judges and Jurists Forum launched a study report Covid-19 and the compliance of SADC states with human rights standards as they implement measures to fight the pandemic. Among other things the study found that measures implemented to mitigate the impact of the pandemic restricted fundamental freedoms and rights in some instances and rights to access to livelihoods were affected in the process. Read on to find out more.
Human rights remain the cornerstone Of good governance, the rule Of law and democratic accountability. The protection of civil liberties is an essential guardrail against democratic backsliding and descent to totalitarianism. This is ever-more relevant in the context of a global pandemic when emergency measures permit derogation from certain freedoms. A people and rights centered approach is the only way that the pandemic will not devolve into a threat to the rule of law and constitutionalism whilst adequately responding to the immediate threat to human life. For this reason, the Secretary General of the United Nations issued guidelines on human rights centered state responses to the pandemic. The guidelines are a comprehensive tool for state actors which are a useful comparator in assessing state action in the context of the pandemic.
Several Southern African countries have legal obligations under the three United Nations human rights instruments commonly referred to as the international bill of rights. Article 4 (l) of the International Covenant on Civil and Political Rights (ICCPR) is the seminal international law provision germane to emergency provisions. It provides as follows:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
This means that states are permitted to derogate from the ICCPR only to the extent that is responsive to the emergency whilst upholding other obligations under international law and respecting the principle of non-discrimination. Further, certain rights are absolute in that they cannot be restricted even during times of a public emergency. These include the rights to life and freedom from torture.
All derogations from fundamental freedoms must be provided for by law and be necessary and proportionate. The severity, duration and geographic scope of the restrictions must be limited and responsive to the public emergency. That is to say, restrictive measures must not limit rights save to the extent that is necessitated by the emergency. These international principles have binding force as they have been domesticated by many SADC countries including Botswana, Eswatini, Mozambique, Zambia and Zimbabwe. In spite of these legal obligations, these states have implemented measures restricting the enjoyment Of fundamental freedoms, including rights which are absolute under domestic and international law. In extreme cases, the derogations have included extra-judicial killings, abductions and acts of police brutality, thus highlighting grave threats to the legal and constitutional order. Even though the restrictive measures have been prescribed by law, some still fail the necessity and proportionality tests. Laws which criminalized criticism of governments’ response to the pandemic were clearly unnecessary and disproportionate, as was the demolition of informal market stalls. Broadly restrictive lockdown measures without socio-economic safety nets also disproportionately affected ordinary workers and the right Of access to livelihoods.
This report is designed to highlight the areas in which states can reform their response to the pandemic to live up to the national and international legal obligations. It is the anchored in the belief that fundamental freedoms allow for comprehensive and holistic solutions which are sustainable, popularly accountable and human rights-compliant.
Overview of State Responses
On 12 March 2020, Mozambique’s National Director of Public Health announced measures to combat the pandemic which included quarantining visitors from countries with over 1000 confirmed cases of COVID-19. This was later clarified on 16 March 2020 when the President indicated that the mandatory M-day quarantine applied to all persons arriving from countries with active transmission, regardless of Mozambican citizenship. The President also suspended all foreign state travel and events with more than 300 people. At the time of the announcements, these limitations were not supported by any law.
The Centre for Public Integrity (CIP) issued a statement on 19 March 2020 labelling the measures as “manifestly insignificant given the scale of the threat in the region.” The CIP called on the government to declare a state of national emergency in accordance with Constitution. The CIP also challenged the government to ensure the availability of water in public places and provision of mandatory and free testing for those with symptoms. A Presidential Decree issued on 20 March 2020 declared a state of emergency. The declaration was extended on three occasions. These decrees were ratified by the Assembly as required by the Constitution. During this time, COVID-19 cases were increasing mainly in Maputo city and Maputo province. On the third and final extension of the state of emergency, the government relaxed restrictions to allow resumption of activities in certain sectors including education, business, culture and tourism. These were to be opened “in strict compliance with the preventive measures and protocols defined by health authorities”.
Following the expiration of the state of emergency, on 29 July 2020, the government declared a state of public calamity under the Legal Regime of Management of Disaster Risk Reduction and the associated Regulations of Disaster Risk Management and Reduction Law. Unlike a state of emergency, a state of public calamity subsists until terminated by the government. It introduced several measures to contain the spread of COVID-19. This included mandatory home quarantine for any citizen who had direct contact with a COVID-19 patient, provision of a Polymerase Chain Reaction (PCR) test results by travelers, mandatory 10-day home quarantine by travelers and an additional PCR test or 14-day quarantine. Further, wearing masks in crowded and public spaces was declared mandatory. Commendably, vulnerable persons and citizens aged 65 or over; persons with underlying chronic health conditions deemed to belong to risk groups; and pregnant women were to be provided special protection.
However, public transport, educational institutions, places of worship and public gatherings were adversely affected by the declaration of a state of public calamity. Based on continuous review of the situation, the government undertook to have gradual reopening of schools and colleges from 1 October 2020.
Read the full report here (2MB PDF)
Source: African Judges and Jurists Forum