The dangers of states of emergency to combat COVID-19 in Africa
The AU and PSC should take note of calls to respect human rights during lockdowns.
The African Commission on Human and Peoples’ Rights (ACHPR) has, on several occasions since late March 2020, appealed to African countries to uphold human rights in their responses to COVID-19.
The ACHPR wrote to President Cyril Ramaphosa, chairperson of the African Union (AU), to reiterate its concern about ensuring ‘effective and human rights-based responses to curb the spread of the COVID-19 pandemic in Africa’.
It also called on Tanzania and South Africa, on an individual basis, to respect human rights, including safeguarding public health in Dar es Salaam. This followed the declaration of states of emergency or similar legal provisions such as states of disaster in several countries and the enforcement of various measures to contain the spread of COVID-19.
The implementation of these measures has threatened people’s rights, complicated existing challenges and could revive or exacerbate social and political tensions, against the backdrop of a continent-wide economic downturn.
The implementation of these measures has threatened people’s rights, and could exacerbate social and political tensions
The handling of COVID-19 patients has also raised serious human rights concerns. Many have complained about being placed in isolation centres or taken to health facilities where they have received inadequate medical attention and poor nutrition, and have been treated in an inhumane or degrading fashion.
Healthcare workers themselves, at the frontline of the fight, have also complained about not getting the appropriate equipment to do their jobs. When they wanted to protest, the state of emergency regime prevented them from doing so.
The AU and its Peace and Security Council (PSC) should heed the call made by its own organ, the ACHPR and other rights groups. Member states must reaffirm their commitment to preserving the rule of law in order to ensure social and political stability. With the ACHPR, the AU and the PSC must be active and vigilant so as not to allow a receding of rights that will be detrimental to the continent’s peace and stability.
States of emergency in Africa: procedural issues
In the past two months, several African countries have declared states of emergency or national disaster to enable them to manage the COVID-19 pandemic. This was the case, for instance, for nearly all countries in the Economic Community of West African States (ECOWAS), including Burkina Faso, Mali and Niger, which were already under this legal regime to repel other security threats, particularly terrorism.
Across the continent, many countries have implemented measures that restrict the mobility of people, banned public gatherings, and rolled out their security forces to oversee the implementation of these measures. The extended powers given to security forces in some countries go beyond restricting the movement of people to include the authorisation to search people's homes without a warrant.
The extended powers given to security forces in some countries go beyond restricting the movement of people
In most cases in Africa, only a state of emergency or national disaster gives governments, in this case the executive branch, immediate and extended powers to make such decisions legal and enforceable. Depending on the country, declaring a state of emergency or of national disaster follows distinct processes and confers different powers on the executive. In most cases, a state of emergency gives more extensive powers to the executive and, as a consequence, drastically reduces civil liberties.
The involvement and control of other branches of government is typically limited at first and then eventually becomes necessary to extend the state of emergency, for instance.
Court challenges
In some countries, such as the Democratic Republic of Congo (DRC) and Malawi, these measures were challenged in court. In the first case, before the state of emergency was declared on 24 March and a lockdown of parts of the capital city–province Kinshasa was imposed, President Felix Tshisekedi had announced, on 18 March, measures to restrict the movement of people, including banning public gatherings, closing schools, restricting travel and closing public establishments such as bars and restaurants.
Many believed that instituting those measures before declaring the state of emergency was unconstitutional. Some also argued that Tshisekedi was supposed to consult with and get approval from both Parliament and the Senate before declaring the state of emergency. The Constitutional Court, however, ruled that Tshisekedi’s state of emergency declaration was in fact based on the law.
What has transpired in the DRC is also linked to the political climate before the outbreak of COVID-19, whereby Tshisekedi has been in a fragile and at times tumultuous political arrangement with former president Joseph Kabila’s Front Commun pour le Congo (FCC), which holds a majority in Parliament and the Senate.
Courts in Malawi cancel the government’s plans
In Malawi, President Peter Mutharika declared a state of national disaster, seeking to impose a 21-day nationwide lockdown that was to begin on 18 April. Human rights groups brought the matter before the country’s high court, claiming that the president had failed to outline measures to provide for the most vulnerable of the population. In response, the court temporarily suspended Mutharika’s decision and later confirmed it, saying that it was a matter for the Constitutional Court.
The challenge put forth by rights groups suggests that health security does not necessarily supersede food security, or that the two are not mutually exclusive. If a government is to declare a state of national disaster to preserve the health of the population, it has to ensure that it does not endanger their food security at the same time. Many have also argued that if a lockdown leads to more people dying of starvation than of COVID-19, the restrictions placed on people’s movement become self-defeating.
What both situations show, albeit in different ways, is that procedures do matter. They ensure the soundness of the process, protect against potentially arbitrary decisions, contribute to the stability and solidity of state institutions, safeguard checks and balances, and provide for accountability mechanisms.
They also show that the political context matters. Both Tshisekedi and Mutharika face challenges to their legitimacy. This is also the case in countries such as Togo and Guinea, where states of emergency were declared with both countries going to elections amid crackdowns on the opposition and civil society.
States of emergency in Africa and abuse of power
Due to the abuses seen during the COVID-19 lockdowns around the world, UN High Commissioner for Human Rights Michelle Bachelet recently warned that ‘the public health emergency risks becoming a human rights disaster’.
There has been a tendency towards what can be described as the misuse of the state of emergency for repressive or purely political purposes. ‘But emergency powers should not be used as a weapon to quash dissent, control the population and even perpetuate their time in power. Exceptional measures should be used to cope with the pandemic, nothing more, nothing less,’ says Bachelet.
The current environment makes it even more difficult for civil society and human rights defenders to oppose this shift
The fear is that the pandemic will persist over time and that this decline in human rights will continue even beyond this crisis.
In fact, as a state of emergency cannot be a permanent regime, some countries are in the process of passing or have passed laws that allow the maintenance of the restrictions imposed in the fight against COVID-19. This legalises, de facto, a kind of ‘regime of exceptions’, which in many cases can hardly pass constitutional muster. In addition, the current environment makes it even more difficult for civil society and human rights defenders to oppose this shift.
What is at stake is not a philosophical or ideological debate about democracy or human rights, but rather the very lives of the people for whom these measures are being taken. Managing this pandemic requires trust, particularly between governments and citizens. Transparency and accountability are two important ingredients to build and maintain this trust. A show of force and rolling back citizens’ rights and civil liberties will not do.
