Covid-19 a stress-test for legislative emergency provisions in African countries

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The Covid-19 pandemic was a stress-test for constitutional and legislative emergency procedures in several African countries, with there being a need to analyse and promote the role of law enforcement and criminal justice systems in a crisis.  

These are among several findings made in a report released on Wednesday by the Centre for Africa Criminal Justice Reform (ACJR), part of the Dullah Omar Institute at the University of the Western Cape.

The report outlined the restrictions on the rights of citizens through Covid-19 management measures taken in South Africa, Mozambique, Kenya, Malawi and Zambia. 

The research surveyed the litigation and responses to lockdown measures, the effect on civil and political rights, detention monitoring and oversight mechanisms.

“This report highlights the measures taken by the five governments in response to the Covid-19 pandemic. Limits placed on civil and political liberties were an issue of concern for us as human rights defenders,” said project lead Lukas Mantingh.

Although all of the five countries had provisions in their Constitutions for exceptional circumstances such as a state of emergency, state of disaster or state of calamity, the implementation of these legislative provisions were done selectively,  raising concerns that a general application of the state of emergency or state of disaster would violate human rights as well as harm the socioeconomic conditions of impoverished populations.

“All of us observed how lockdowns impacted on socioeconomic rights with large portions of the populations of the countries that we surveyed living in poverty, being poor and they are very dependent on the informal economy for their livelihoods, and lockdowns and restrictions very much impacted on their well-being,” added Mantingh.

South Africa declared a state of disaster under the Disaster Management Act in March 2020.  

Malawi’s decision to declare a state of disaster was challenged and overturned in the high court, and was later declared by the new government, which also put in place public health regulations to deal with a curfew and restrictions on market hours. 

In Kenya, the government relied on the Public Order Act and the Public Health Act to create a curfew order and health rules. 

The Zambian government, despite having a Public Health Act, created Covid-19 health rules followed by a series of announcements made by the president.

Mozambique has in place the state of calamity, which was preceded by the state of emergency, which, according to its Constitution, was supposed to be in place for three weeks, but has been extended three times.

“The limit placed on civil and political liberties to address Covid-19 seems to have also sometimes facilitated the excessive use of force at operational level law enforcement. And this for us as human rights defenders obviously calls for concern. We have to ask questions about the use of armed police and the military sometimes to enforce a public health intervention,” said Mantingh.

He added that there was a need to analyse and promote the proper role of law enforcement and criminal justice systems in a crisis such as the one that was created by the pandemic.  

The criminalisation of behaviour that would ordinarily not be a crime has also been questioned. Was this the appropriate response to a health crisis?  

Another concern raised by the researchers was that although the legislature played a role in the formulation and declaring on measures to prevent the spread of Covid-19, there was no clarity on the procedures that were used to impose restrictions.