Constitutionalism and Covid-19 in Africa
A Call to contribute to the ANCL Special Issue
As at 5 May 2020, more than 24000 COVID-19 cases have been reported across Africa. Compared to other continents, Africa has a relatively small number of infected people. However, the virus is spreading exponentially across the continent and gradually spreading beyond urban to rural communities. For instance, in South Africa, all provinces have now reported cases of the virus. In West and Central Africa, Burkina Faso, Cameroon, Nigeria, Ghana and Senegal are leading the chart with the number of reported cases. While most countries have been affected to different degrees by COVID-19, many countries in Africa are implementing measures to contain the virus, which restrict gatherings of a certain number of people and encourage people to stay at home and in isolation. In, Kenya, Uganda, the Republic of the Congo, South Africa, and Zimbabwe, these measures include emergency declarations and nationwide lockdown.
Constitutional and Legal Framework
So far, except for some implementation inconsistencies in some countries, most of the emergency measures adopted across the continent have constitutional backing. For example, in conformity with article 93 of the Constitution of the Federal Democratic Republic of Ethiopia, the government has declared a State of emergency for five months, which awaits formal endorsement of the Parliament. In Uganda, the State is empowered through article 110 of the 1995 Constitution to declare a state of emergency in times of crises. These examples are common across the continent and most States have activated this constitutional provision as mandated by their Constitutions for the first time in decades.
However, the challenge during times likes these, times when constitutional provisions prescribing state of emergencies are activated without proper consultation and study of its consequences, there are bound to be irregularities in implementation. For instance, reports from several African countries are highlighting police and military brutality and the need to balance such measures with personal freedoms and human rights. Indeed, the African Commission on Human and Peoples’ Rights has called for caution to ensure that emergency and other measures in response to the COVID-19 pandemic must be consistent with fundamental rights. UN human rights experts have similarly warned that “emergency declarations based on the Covid-19 outbreak should not be used as a basis to target particular groups, minorities or individuals. It should not function as a cover for repressive action under the guise of protecting health … and should not be used simply to quash dissent.” Therefore, African governments remain duty-bound to protect the rights of everyone in their respective countries. According to Human Rights Watch, one of the ways of promoting and respecting human rights during a state of emergency to contain the spread of Covid-19 is to “ensure that accurate and up-to-date information about the virus, access to services, service disruptions and other aspects of the response to the outbreak are readily available and accessible to all”.
Aware of the possible social and economic upshots of some of the measures adopted in most African countries during the State of emergency to flatten the curve of COVID-19, governments have made promises, that in some countries, have never been made before. For instance, in Ghana, the State has promised to pay rent and water bills; in Nigeria, the federal government has approved the establishment of temporary makeshift food markets in states where a lockdown is imposed and in South Africa and Cameroon solidary funds to provide financial support to those in need have been established.
In addition to devastating socio-economic repercussions, the COVID pandemic will also affect the organisation of elections. For instance, Ethiopia has become the first country to postpone general elections originally planned for August 2020. The fate of legislative elections in Egypt, general elections in Burundi and in other countries remains uncertain. Decisions on holding or postponing elections create their own constitutional and legal complexities.
Aim of the Special blog Issue
The overarching goal of this special blog issue is to provide a succinct legal and constitutional analyses of State responses to contain COVID-19 in Africa, particularly focusing on the accountability mechanisms that have been put in place to ensure respect for fundamental rights as well as restrain the abuse of responses to advance incumbent electoral interests. The aim is also to investigate the practicality of accessing the support measure that has been declared at the state level in different African countries.
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