Luis Antonio Mondlane J
Justice at the Supreme Court
The Republic of Mozambique,
Head of Criminal Division, former President of SADC Tribunal
The COVID-19 pandemic had spread throughout the globe. It is, indeed, a lethal weapon, a bomb that uses the target, the victim, as a carrier. On its account, over 200.000 people have died, more than three million have been infected and a countless number have affected in many ways.
The storming pandemic led states around the world to enforce constitutional provisions of exception, the state of emergency. Many African states have already resorted to such constitutional measures in order to curtail, prevent or lower the level of new infections. Africa’s developing countries, to be precise the least developed in the global economy, face a great deal of challenges in implementing the state of exception, namely to provide basic needs for people with lower income.
It is argued that suspending or limiting fundamental rights does not amount a suspension of the Constitution. As CANOTITLHO and MOREIRA rightly put it: “The state of exception does not provide ground to suspend the Constitution for the mere fact that beyond the suspension of fundamental rights, nothing else can be subject to suspension” (free translation).
The state of exception, as the term implies, is a fundamental change to the constitutional order and, according to its nature, must be limited in time, transitory, aimed at strengthening public power in response to the occurrence of abnormal and harmful situations, in order to address them and reinstate the normal constitutional order. Accordingly, GOUVEIA asserts that the state of exception entails three elements: i) material - fundamental alteration of the constitutional and legal order; ii) functional – the need to strengthen public power in order to deal and terminate with such abnormal situation; and iii) temporal – with the limited time frame.
It is clear that modern constitutionalism provides rules to address measures of exception as a way to protect the Constitution itself. Arguably, by regulating the state of exception, the Constitution provides mechanisms for self-protection, thus preventing arbitrary use of public power without any legal limits. In other words, the state of exception must not be used as a tool to change the constitutional order, or abandon or break of the Constitution.
Constitutional and legal framework
Mozambican Constitution prescribed rules aimed at providing legal discipline to the state of exception. As mentioned above, these guarantees to the Constitution constitute mechanisms to preserve the constitutional order, democracy, rule of law and to move back, as quickly as possible, to normality.
The first Constitution (1975) assigned power to the President to declare a state of siege or a state of emergency and to Assembleia Popular (the then Parliament) to sanction the said declaration. Similar provisions are to be found in subsequent constitutions, clearly moving a step ahead, toward consolidating constitutional movement. Art. 158 of 1990 Constitution established the National Council for Defence and Security with power to issue an opinion about the declaration of war, state of siege or state of emergency and the suspension of fundamental rights and guarantees (art. 122, a); 135, e) and 159, a), b).
It is argued that authority to decree the state of exception is the strongest State power thus justifying that sovereign is “who decide about the state of exception”.
Following the trend of institutional involvement in the process of conception, declaring and execution of the state of exception, the 2004 Constitution dedicated an elaborated chapter on guarantees of the Fundamental Text, in force up to the current Constitution. I contend that the last constitutional amendment (Act n. 1/2018, of 12 June) does not amount to a new Constitution due to its nature and ambit, focused on regulating local state power and public administration.
Articles 290 to 298 of the Constitution set up rules for the state of exception and respective proceedings.
a) Art. 290, section 1 establishes that the state of emergency may only be declared on a particular region or the entire country, in cases of effective or imminent aggression, grave threat or disturbance of constitutional order or of public calamity. These are material and legal requirements for the declaration.
b) The state of emergency currently in force in Mozambique was instituted on the ground of public calamity, to be applied nationwide. Presidential Decree n. 11/2020, of 30 March acknowledges the public calamity as a result of COVID-19, a deadly infectious disease. Section 2 of art. 290 of the Constitution prescribes that the declaration of a state of emergency must be motivated, provide material ground for its adoption and specify rights and guarantees suspended or limited.
c) Aligned with the above constitutional norm, art. 3 of Presidential Decree duly specifies rights and guarantees subject to suspension or limitation, namely: suspension of visa issuance and cancellation of those already issued; compulsory 14 days quarantine for everyone entering the country from the then previous two weeks; suspension of schools (public and private) from pre-school to university; prohibition of public and private gatherings of any nature and mandatory execution of preventive measures for public and private collective means of transport.
d) Restrictive measures (section 2) encompasses, inter alia: movement of people within the country; compulsory domicile confinement or inadequate establishments aimed at achieving preventive means in cases of non-compliance with compulsory domicile quarantine; closure of commercial establishments (formal and non-formal, thus including “barracas” bottle stall and bars); redirect industrial sector to produce required inputs to fight the COVID-19 pandemic; introduce staff shifts in workplaces and other adequate measures in order to curtail spreading of the coronavirus.
e) Non-compliance with Presidential Decree is punished according to criminal law.
f) All measures set forth in the Decree must be applied taking into consideration the principle of proportionality. Art. 291 of the Constitution prescribes legal assumptions for the declaration of a state of emergency. It must respect the principle of proportionality and limits itself to means and length of its duration to what is absolutely necessary for rapid reinstatement of constitutional order.
g) The Presidential Decree is further regulated by Decree n. 12/2020, of 2 April, issued by the Council of Ministers.
h) The state of emergency shall not be longer than 30 days and may be extended for an equal period up to three times provided that the reasons behind its adoption still persist (Art. 292 of the Constitution). Accordingly, the Presidential Decree fixed that the emergency measures will last for 30 days, from zero hours of 1st April up to 24 hours, 30 April, subject to alterations.
After declaring the state of emergency, the Head of State must submit the declaration to Assembleia da República within 24 hours, as well as the respective motivation. In its turn, the Assembly deliberates over the matter within 48 hours. Accordingly, the Assembly adopted Act n. 1/2020, of 31 of March that: a) ratifies the declaration of a state of emergency; b) limits access to justice in the sense that only urgent matters shall be considered during emergency state; c) suspension of legal deadlines and d) mandating the Chief Justice, the President of Administrative Court and the Attorney General to take appropriate and additional measures aimed at preventing COVID-19. In the process, they may consider the opinion of the Bar Association.
Taking into consideration that the power to declare a state of emergency is vested in the President, the question of whether the Parliament may introduce amendments to the text represents a critical issue. It is noted, however, that the process of adoption and ratification of a declaration of the state of an emergency involves the executive and legislative powers, leading some scholars to avert that such process represents a derogation of the principle of separation of powers. Nevertheless, it is contended that, once the President publicly declares a state of emergency, the Parliament can only ratify or reject the declaration and nothing else. The matter at stake requires the involvement of the three branches of power, as will be demonstrated later.
The state of emergency shall not, in any circumstances, limit or suspend the right to life; to physical integrity; to civil capacity and citizenship; non-retroactivity of criminal law; the right to defence and religious freedom (art. 294 of the Constitution). It is clear that the declaration of the state of emergency observed fully the above constitutional provision. Additionally, the declaration is tuned with art. 4 of the International Convention of Civil and Political Rights. The Republic of Mozambique, as member of the international community, must abide by international law.
Art. 295 of the Constitution points out the individual liberties that may be subject to restriction or suspension in a state of emergency, such as a mandatory stay in a place to be determined; detention, including in a place not destined to accused or convicted persons in criminal cases; correspondence inviolability; communications secrecy; freedom of press, radio and television; search and apprehension in domicile; suspension of freedom of assembly and demonstration; and requisition of goods and services.
The Constitution further prescribes specific provisions for detention (article 296). According to it, a) a family member of the detainee or person indicated by the detainee shall be immediately notified about detention and the indictment within a period of not more than 5 days; b) the name of the detainee and respective incriminating law is to be published within 5 days; c) the detainee must be presented to the court within 10 days, maximum. It is argued that the previous section raises a criticism. In the context of war, ten days may be reasonable, given the circumstances. However, for a detainee, indicted with the crime of non-compliance in a state of emergency, to be presented to the court in ten days, may open a window for abusive use of power. Ordinary law (article 311 of the Criminal Procedure Act) sets that time frame to 48 hours. In a state of emergency, the evidence is quickly gathered and courts only deal with urgent matters, which indicates that ordinary time frame can be observed.
Oversight by Parliament and Judiciary a
At the end of the term of a state of emergency, the President shall provide to Assembleia da República detailed information of measures taken in the execution of emergency regulations and nominal list of citizens affected by calamity. This is the most considered mechanism assigned to the Assembly for controlling the enforcement of emergency measures. When in session, the Assembly may summon at any time the executive to render account of the said process.
The President, in his capacity as Head of State and of the executive, oversees the implementation of emergency measures through various institutional means. A special commission (Technical and Scientific Commission for preventing and combating COVID-19 Pandemic) is in full operation and assists the President for adopting effective measures to end the calamity.
The Judiciary has its role in controlling emergency regulations. In this regard, the Constitutional Council may exercise prior or successive control of constitutionality of emergency legal status as prescribed by articles 243, subsection a), 244 and 245 of the Constitution. Regular courts also have an important role in considering matters brought before them. This judicial control can be exercised through criminal and civil courts, administrative, tax and customary courts. As referred above, they must operate to the extent possible due to the nature of the calamity. Suspension of rights and guarantees does not mean suspension of the Constitution.
Considering the need to protect life and human dignity and touched with the spirit of humanism in the context of COVID -19, Assembleia da República passed the Act n. 2/2020, of 6 April granting amnesty and pardon. More than five thousand prisoners benefited from these measures of clemency. The President granted pardon to convicted persons suffering from serious diseases.
The new coronavirus pandemic and COVID-19 represent a serious threat to humankind, regardless of race, colour, social status, property, creed or religion, or economic status. The calamity is inflicting severe burden on the entire world. It is important that enforcing legal and administrative emergency regulations won’t, by all means, transform itself into a new calamity. Police misconduct, brutality or abusive use of power may be considered as an added calamity from the victim’s perspective. Any citizen deserves respect and to be treated with dignity. As a matter of fact, the citizen is the first and rightful controller of proper enforcement of the state of exception.
It is important to note that revocation of the state of emergency does not affect civil liabilities related to wrongdoing perpetrated by emergency executors or agents (art. 298, section 2 of the Constitution).
As discussed, for the time in the history of Mozambique, a state of emergency has been declared. At this stage, two aspects can be advanced. It is argued that proceedings regulating declaration and enforcement must be enacted. The Constitution provides general parameters and fundamental norms. Details must be stated through ordinary legislation. Proportionality must be fully observed in the process of adopting emergency measures. A clear distinction of matters to be dealt with by administrative means and those requiring drastic measures must always be in place. A balance between lockdown and dying from starvation and other measures constitutes the challenges of today.