Mtendeweka Mhango
Dean and Professor, Faculty of Law, National University of Lesotho
Tekane Maqakachane
Senior Lecturer, Faculty of Law, National University of Lesotho
Introduction
The Covid-19 pandemic has affected every country on the globe, and Lesotho has not been spared. Despite no cases being reported in Lesotho at the time of this writing, the government of Lesotho has taken significant legal steps in response to the pandemic. Chief among these steps is the declaration of a state of emergency in terms of s 23 of the Constitution of Lesotho, 1993 by the Prime Minister on 27 March 2020 and again on 15 April 2020. This declaration was accompanied by a decision to impose major restrictions including on the freedom of movement, which is protected under s 7 of the Constitution.
The government also announced a number of economic measures to assist and alleviate the economic impact caused by the pandemic. In this brief contribution, we discuss the constitutional and legal provisions that empower the state in Lesotho to respond to public emergencies such as the Covid-19. We also examine the context and legality of the steps taken by the government of Lesotho in responding to Covid-19 and the possible implications.
Constitutional and Legal Framework
The constitutional provisions that regulate emergency measures are contained in s 23 of the Constitution, which reads as follows:
23. Declaration of emergency
(1) In time of war or other public emergency which threatens the life of the nation, the Prime Minister may, acting in accordance with the advice of the Council of State, by proclamation which shall be published in the Gazette, declare that a state of emergency exists for the purposes of this Chapter.
(2) Every declaration of emergency shall lapse at the expiration of fourteen days, commencing with the day on which it was made, unless it has in the meantime been approved by a resolution of each House of Parliament.
(3) A declaration of emergency may at any time be revoked by the Prime Minister acting in accordance with the advice of the Council of State, by proclamation which shall be published in the Gazette.
(4) A declaration of emergency that has been approved by a resolution of each House of Parliament in pursuance of subsection (2) shall, subject to the provisions of subsection (3), remain in force so long as those resolutions remain in force and no longer.
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(7) Any provision of this section that a declaration of emergency shall lapse or cease to be in force at any particular time is without prejudice to the making of a further such declaration whether before or after that time.
In addition to s 23 of Constitution, Parliament has enacted statutes that enable the state to implement a state of emergency situations. Among these statutes is the Emergency Powers Act of 1988 and the Disaster Management Act 2 of 1997. Section 23 of the Constitution is read and implemented together with the Emergency Powers Act and the Disaster Management Act. The question is how these provisions have been implemented in relation to Covid-19.
Declaration and Termination of State of Emergency
In order to put into context Lesotho’s implementation of measures to combat Covid-19, it is important to start with Legal Notice 21 of 2020, which contained a decision by the Prime Minister in terms of s 91(3) of the Constitution to prorogue Parliament from 20 March to 19 June 2020. In the context of this decision, s 91(3) must be read together with s 83 of the Constitution which reads in pertinent part as follows:
83. Prorogation and dissolution of Parliament
(1) The King may at any time prorogue … Parliament.
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(4) In the exercise of his powers to dissolve or prorogue Parliament, the King shall act in accordance with the advice of the Prime Minister.
The decision of the Prime Minister to prorogue Parliament was based on s 83 read together with s 91 of the Constitution. The decision was challenged and set aside in All Basotho Convention v The Prime Minister on the basis that it was irrational.
Be that as it may, on Friday 27 March 2020, the Prime Minister pursuant to s 23(1) of the Constitution retrospectively declared a state of emergency from 18 March 2020. As shown above, since s 23(2) of the Constitution prescribes that a declaration of state of emergency automatically lapses at the expiration of 14 days from the date on which it was declared. It means that the state of emergency automatically lapsed on 8 April 2020 unless extended by Parliament. The allocation of these powers to a Prime Minister is based on a constitutional theory that a Prime Minister can act quickly without the need to harmonize conflicting interests of society. Lesotho is not the only country in the region that confers powers to the head of the executive to declare a state of emergency without parliamentary approval.
Limitation on Rights
Along with the Prime Minister’s declaration of the state of emergency came a number of restrictions on the fundamental rights of all inhabitants of Lesotho. These restrictions are contained in the Declaration of COVID-19 and the Public Health (COVID-19) Regulations.
Firstly, according to s 3(c) of the Declaration of COVID-19, no person is allowed to leave their place of residence, except in limited circumstances. This provision has limited the right to freedom of movement protected under s 7 of the Constitution.
Secondly, under s 3(d) of the Declaration of COVID-19, gatherings are prohibited except for funerals, which shall be attended by not more than 50 people per funeral. This provision has limited the freedom of peaceful assembly and association protected under ss 15 and 16 of the Constitution, respectively.
Thirdly, according to s 3(f) of the Declaration of COVID-19, members of the press are expected to refrain from publishing fake news, which is not defined in the regulations. The provision has limited the freedom of expression protected under s 14 of the Constitution. It is a well-established constitutional principle across many jurisdictions that freedom of expression extends to false speech. The issue is what sort of limitations on this right are acceptable. In Peta, the high court sitting as a constitutional court in Lesotho recently accepted the proposition that false or exaggerated speech has intrinsic value in fostering political participation and individual self-fulfillment, and that limiting such speech impinges upon the freedom of expression more than is necessary in a democratic society. By accepting this proposition, the court also endorsed the philosophical justification and purpose for freedom of expression – the search for truth by individuals. False speech or fake news enables individuals to ascertain the truth in a free and open society through debate. Scholars have argued that false speech, which is inclusive of fake news, has value in the sense that it incites individuals to examine the propositions contained in it leading them to discover the truth. Therefore, s 3(f) has a chilling effect on the discovery of the truth about Covid19.
One might argue that the theory behind a state of emergency is to limit rights that are protected under normal circumstances in order to address a threat against the nation, and that s 3(f) of the Declaration of COVID-19 must be understood within the context of the fight against Covid19. Nevertheless, when invited to enforce s 3(f), we submit that courts in Lesotho must have regard to the circumstances of each case and the reasonable acts of each alleged violator. A useful test was suggested by the South African case of National Media Ltd which held that:
[T]he publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in a particular way and at the particular time.
Similarly, in Hamata, the South African Supreme Court of Appeal endorsed the above view but added that:
... although it may be fair to say that even a totally inaccurate and false article does not fall outside the ambit of the right to freedom of expression, inaccuracy of the article must be a weighty consideration in the performance of the balancing act required by the … Bill of Rights. ... Moreover, if the untrue statement is found to have been deliberately published, well-knowing that it was untrue or misleading, it will even more easily be overridden by countervailing interests.
Based on the above, it is submitted that the courts in Lesotho must exercise a balancing test when enforcing the COVID-19 related declarations keeping in mind the purpose of freedom of expression especially in this era where WhatsApp or social media messages spread more rapidly than Covid19. It is also clear from the Lesotho Constitutional Court’s judgment in All Basotho Convention v The Prime Minister that courts in Lesotho will intervene to enforce the Constitution in the implementation of policies or measures relating to the fight against Covid-19.
Fourth, s 8 of the Public Health (COVID-19) Regulations limits a person’s freedom of personal liberty, freedom from arbitrary search or entry and the right to respect for private and family life in ss 6, 10 and 11 of the Constitution, respectively. It does this by requiring a person who is identified with symptoms of Covid-19 to be subjected to compulsory quarantine by the state.
Lastly, section 4 of the Declaration COVID-19 prohibits all forms of activities including entertainment, sports, church service and many more. This provision limits the number of rights including freedom of expression, religion and conscience. At the time of this writing, no court cases have been reported alleging breaches of these measures.
Oversight by Parliament
As alluded to earlier, the Prime Minister has the power to declare the state of emergency without the approval of Parliament. However, only Parliament has the power to extend such a declaration from the initial 14 days. The problem in Lesotho is that the state of emergency was declared at a time when Parliament was prorogued. This means that there was no constitutional authority to extend the state of emergency beyond the 14 days that the Prime Minister is allowed to establish. Realizing this constitutional reality, on 15 April 2020, the Prime Minister re-declared the state of emergency from 15 April 2020 to 28 April 2020. Whilst this was legally correct under those circumstances, it does raise questions about the legal position that persisted between 8 April and 15 April 2020. Was there a state of emergency during this period? Were the things done or enforced during this period constitutionally sanctioned? The answers to some of these or other questions remain unclear and may never be found.
Oversight by the Judiciary
One of the progressive provisions in the Public Health (COVID-19) Regulations is Schedule 1, which recognizes courts and legal practitioners as essential services. This is important because it enables citizens to vindicate their rights and the courts to continue to exercise their power of judicial review during the state of emergency. One of the landmark cases decided during this period is All Basotho Convention v The Prime Minister, where the court rejected the Prime Minister’s reason to prorogued Parliament as part of government measures to prevent Covid-19. The Prime Minister’s argument was that by proroguing Parliament, it would ensure that large gatherings are not held. The court found the decision irrational because it did not consider the effects of the ability of government to access financial resources in the fight against Covid-19. The court also found the decision irrational because the Public Health (COVID-19) Regulations recognized Parliament as not being affected by the lockdown imposed in those measures, and yet Parliament was prorogued.
Conclusion
It is fortunate that no case of Covid-19 has been reported in Lesotho. However, the authorities have implemented a state of emergency measures since March 2020. The implementation of these measures has been marred with some constitutional controversies. The jury is still out on the full implications of the measures put into place and the resulting constitutional controversies.