It is a great honour and privilege to address the Parliamentary Clerks of SADC Parliaments on a matter of grave importance: the impact of COVID-19 pandemic and the role of Parliaments in responding to national disasters.
History teaches that humanity has always been plagued by disasters and Covid-19 is most certainly not the last. It is therefore important to reflect on the role of Parliaments in responding to disasters using COVID-19 merely as a spring board, for present purposes.
In my considered view the duty of Parliamentary Clerks is to assist Parliament, its officers and members, to fulfill their constitutional and representative functions by rendering non-partisan, enlightened and authoritative procedural advice and guidance. If this departure point is true then it behooves the Clerks to understand the broad impact of COVID-19 on our societies and the role of Parliaments in responding to national disasters. As we all know Parliaments’ primary constitutional duty is to pass laws. It is for this reason that my presentation will focus on the legislative function in responding to disasters by giving a broad synopsis of what ought to be done.
COVID-19 is upon us. Many of us have lost relatives and loved ones – and know many other people who have been infected. The numbers are increasing every day. It is a living reality. It has brought the world into a state of chaos, uncertainty and fear. The primary locus of the chaos has been in public health and the economy, but it has also caused chaos with our systems of law-making. The severity of the crisis has left exposed for all to see the strengths and weaknesses of our legislatures and legislative procedures. The bad examples are magnified – knee-jerk legal reactions, executive dominance, lack of Parliamentary oversight, poor democratic input, populist rather than effective laws, ignorance of science and a general disregard for the proper constitutional order. This is evident across our region in varying degrees.
What may explain the variance is the democratic culture or absence thereof – including fidelity to the rule of law. In times of national crisis we need the rule of law most – a legislative branch that does not forego its oversight role.
At the same time, some Parliaments have conducted themselves very well – even with distinction. Parliaments in several countries, especially in stable democracies, continued to operate throughout the pandemic, and continued to perform their lawmaking and oversight roles. Many legislatures have proven their resilience as well as their ability to adapt. Some Parliaments are meeting virtually – which in itself is an important step in fighting the pandemic. In some member states of SADC the courts have set aside lockdown measures as irrational and unreasonable – and the executives in those countries, to their credit, have obeyed the decisions of the courts.
As the world grapples with the unprecedented Covid-19 crisis many people and governments across the globe found themselves in many difficult and peculiar situations in efforts to contain the situation. The responses by many governments had potentially far-reaching consequences for economies, social and political lives. The priority was to save lives. Given the overwhelming imperative to preserve life, many countries had no choice but to adopt extraordinary measures. Extensive lock-downs were adopted to slow down the rates of transmission of the virus. Some countries considered state of emergencies necessary to effectively deal with the pandemic.
Several fundamental rights were impacted and restricted such as the right to freedom of movement and many other human rights in the process. As the Secretary General of the United Nations noted in his policy brief of April 2020, human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods. Human rights put people at the center-stage. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone and preserving human dignity.
Human rightsUnder international human rights law, which most countries have adopted, everyone has the right to “the highest attainable standard of physical and mental health”. Governments are quite plainly obligated to take effective steps for the “prevention, treatment and control of the pandemic, occupational and other diseases”.
International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it.
Human rights law also recognises that in the context of serious public health threats and public emergencies threatening the life of the nation restrictions on some rights can be justified when they have a legal basis, are reasonably justifiable in a democratic society, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.
COVID-19 immediately impacts on the right to life and dignity, which are the most important rights, as all other rights arise therefrom. It also impacts on the right to health. There can therefore be no doubt that COVID-19, its scale and severity, justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement.
The right to health requires that health facilities, goods, and services should be:
• Available in sufficient quantity,
• Accessible to everyone without discrimination, and affordable for all, even marginalised groups;
• Acceptable, meaning respectful of medical ethics and culturally appropriate; and
• Scientifically and medically appropriate and of good quality.
The Siracusa Principles adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee general comments on State of Emergencies and freedom of movement, permit governments to restrict rights in so far as such restrictions may be necessary or reasonably justifiable in a democratic society.
It is particularly important that a State of Emergency, if required, needs to be limited in duration and any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalised groups. And State of Emergencies should not be abused to target particular groups, minorities, or individuals. It should not be used as an excuse for repressive action under the guise of protecting health and should not be used simply to suffocate dissent.
The Siracusa Principles, I have made reference to above, speciﬁcally state that restrictions should, at a minimum, be:
• Provided for and carried out in accordance with the law;
• Directed toward a legitimate objective of general interest;
• Strictly necessary in a democratic society to achieve the objective;
• The least intrusive and restrictive available to reach the objective;
• Based on scientific evidence and neither arbitrary nor discriminatory in application; and
• Of limited duration, respectful of human dignity, and subject to review.
• In a number of countries, governments have failed to uphold the right to freedom of expression, taking actions against journalists and protestors in a manner that is highhanded, disproportionate and plainly unlawful.
Many countries have resorted to quarantines, lockdowns of varying severity and travel banns in an attempt to contain the pandemic. There is nothing wrong in principle against such measures. Each country must take measures as best suit its circumstances to fight the pandemic.
Governments should ensure that quarantines and lockdowns of indeterminate length are avoided as they rarely meet the required criteria articulated above. The people are generally entitled to know what government is planning to do for them and the basis of their analysis so that they may input into the national plan. Most governments, especially in Africa and other developing countries, do not avail sufficient information to the public beyond the statistics.
It must be noted that some governments implemented emergency measures (Covid-19 regulations) in good faith which had unforeseen or unintended consequences for people’s rights. Some however may be said to have weaponised the pandemic and used emergency measures to deliberately target certain groups and repress citizens’ rights intentionally. In both instances, it is important to ensure that these were done in a lawfully manner - based on the law which should be publicly available to all citizens and that there should be opportunities for these regulations to be challenged if they are not based in the law.
Legislatures around the region have been challenged by Covid – 19 pandemic. They had to adapt in order to remain effective and relevant. A number of parliaments now hold their proceedings virtually. Questions have arisen about parliaments’ role in combating Covid-19, and their relationship with the executive and other state actors.
In many countries, there are specific ways that emergency powers might be activated or drawn upon. These are usually provided for in the constitutional, executive and legislative arrangements, and may, for example, enable access to certain powers when an “emergency” is declared. These emergency powers tend to be implemented through urgent procedures. This can override or curtail normal procedures for passing laws (for example they can be done in a much quicker time with less scrutiny). While these emergency procedures exist to allow governments to deal with extraordinary events, they can only be used when a situation rises to the level of an emergency, and create requirements for a government to show that the emergency laws and policies are reasonable and justified to achieve their goals. An emergency should not relieve the government of this burden to prove it meets these standards.
It is also important to keep in mind that it is not only domestic law that regulates what governments can and cannot do in emergencies such as the Covid-19 pandemic, international law is also relevant. Human rights treaties recognise explicitly that, for some rights, national emergencies may justify “derogation” – which is a process where a State declares that, because of an emergency or very serious threat, it cannot uphold some of its human rights obligations. But to do this, just like in domestic law, there are specific steps that a State must take – including explaining carefully what obligations it is not going to be upholding, why, and for how long .
A derogation provides an important process for oversight and international scrutiny, requiring the State to give clear and specific reasons about the necessity of its derogation and providing an opportunity for other branches of government such as (parliament and or the judiciary and international organisations like the UN as well as the bodies created to monitor compliance with treaty obligations and other states that are signatories to the treaty) to scrutinise those reasons. However, it should also be noted that certain powers cannot be derogated from, even in times of emergency, such as the prohibition on deprivation of life and the prohibition against cruel inhumane and degrading treatment. These protections can never be derogated from, no matter what the emergency is.
The following guidelines in legislating for public emergencies must always be kept in mind and it may be helpful now or in the future for Parliamentary Clerks to take note of them.
Guidelines on state of emergencies
• Has there been a state of emergency declared? Have any emergency-related laws, measures and policies been published and are they available for the public to access?
o The state(s) must declare the
• What is the legal basis for the State to declare a state of emergency (constitutional, legislative, executive discretion)?
o There must be a legal basis for the state to declare a state of emergency, in other words, there must be a provision (Constitutionally, legislatively or through executive discretion that empowers the state to declare a state of emergency and allow it to pass emergency regulations such as the Covid-19 regulations and the deployment of security forces.
• Has the appropriate procedure been adopted to invoke the state of emergency? Has this process been made public? If not, why not?
o National disaster laws and regulations, like all emergency laws, must follow appropriate procedures in order for them to be legally binding, if for an example, the executive is required to inform parliament of its intention to declare a state of emergency and it does not do so, the laws invoked will not be legally binding. Further, the process must also be done publicly unless there are compelling reasons not to and the state must provide such reasons.
• If there is a fixed process to declare an emergency, has that been used? Or has the emergency been “named” as such, but ordinary laws have been used?
• If ordinary measures have been used, are the restrictions on rights they create lawful?
o All restrictions on rights must be legally permissible, in that there must be a justifiable sound legal reason to limit the citizens’ rights. The national disaster or emergency regulations should satisfy the normal test, being: that the limitation is necessary, proportional and non-discriminatory in nature. For example, a provision or regulation that will only limit the rights of a certain religious group will be unlawful.
• If a state of emergency has been declared, the question often arises whether the government also entered a derogation from its international human rights treaty obligations to the extent permissible? If not, why not?
o As explained earlier, a derogation provides for an important process of oversight and international scrutiny, requiring the State to give clear and specific reasons about the necessity of its derogation.
Oversight on national disaster regulations
It is important to ensure that there is oversight on all national disaster laws and regulations particularly because they tend to limit a number of fundamental rights. Like many emergency regulations, most of the Covid-19 regulations were processed in a rush and on close scrutiny may be found to be irregular.
Oversight is crucial even if it does not happen immediately, mainly to ensure that unnecessary, disproportionate and abusive measures can be brought to an end. National human rights institutions, parliament, civil society and other stakeholders should, therefore, ensure that such oversight does take place.
National disaster laws should include procedural protections in the laws themselves to bring the measures to an end after a specific period of time, or at least some process for review should be triggered. This is an important step to ensure that these powers do not become “normalised” into the legal system and that any justification for continuing the exceptional powers is carefully scrutinised.
The following guidelines can be used to ensure that national disaster laws comply with human rights.
• Have the laws and policies or regulations been published?
o The respective states must ensure that the laws and regulations are publicly and easily accessible to the citizens of the respective countries, including ways to challenge them if there is a need to do so.
• Are there continued mechanisms for oversight of the regulations or laws or powers that have been created? Are the oversight mechanisms adequate?
o The respective states must ensure that they put in place effective mechanisms of oversight of the laws and regulations created as a result of any national disaster.
• Do they permit for civil society and stakeholder engagement?
o The laws in question should further permit for scrutiny by independent parties and engagement by all stakeholders to ensure transparency.
• If there are no oversight mechanisms, why have they not been provided?
o The respective states should ensure that they provide sound reasons for lack of any oversight mechanisms when they don’t exist.
• Is there a time-limit to the laws in question? Is there a provision in the law itself that brings it to an end automatically on a certain date?
o National disaster laws and regulations cannot be in place indefinitely, they must provide for a mechanism on how they will come to an end or provide a date upon which they will end. There is nothing however that stops the respective states from renewing the laws upon expiry of such a date.
• Are the emergency laws and policies open to judicial scrutiny? Is access to courts being provided for continuingly?
o The citizens of the respective countries must be able to challenge the lawfulness of the respective laws through independent channels such as the judiciary. The state must therefore ensure that such avenues exist, if they don’t already exist by operation of law, the state must take measures to ensure they exist.
• Is there provision for interim review or parliamentary oversight at a reasonable point in the near future?
o It is also important to ensure that there is a provision for review of these laws by independent bodies such as parliament in future.
• Is there a provision to remove the law by agreement when the emergency is over?
o It may also be important to ensure that there is a provision that provides for the law to cease to exist once the national disaster is over.
It is therefore incumbent upon members of parliament, and their advisors such as Parliamentary Clerks to always ensure the observance of the following principles: parliamentary oversight and scrutiny, democratic accountability, transparency, legitimacy at all stages in the legislative process, observance of the Rule of Law, evidence-based law-making, the principles of rational law-making, scientific literacy of law-makers, proper separation of powers, and respect for human rights and the constitutional order. It is incumbent upon legislatures to ensure that these principles remain true in the time of any other public emergency.
Covid -19 like all other national disaster often do, has profoundly challenged the interactions between the legislative and the executive branches of government. It is true that while executives have assumed a predominant role, parliaments are being increasingly marginalised in some countries. Fortunately in a number of our stable democracies parliaments have followed a realistic and incremental approach to ensure continuity of executive oversight, prioritizing the mechanisms that they deemed to be strategic and also feasible in terms of logistical arrangements.
Constitutional scholars have observed that national disasters such as Covid-19 often poses challenging dilemmas for legislative and judicial oversight, particularly in the era of executive aggrandisement, democratic decay and abusive populist constitutionalism. It is generally agreed that even in situations of acute national emergency courts must remain functional to guard against any possible abuse. The deliberative and scrutiny functions of the legislature and the dispute-resolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness and legitimacy of emergency measures.
Constitutional scholars have also observed that governing in a period of national disasters has often led the executive to assume the role of a law-maker, in terms of which the executive exercises broad emergency powers, while legislatures (and their deliberative and scrutiny functions) have been marginalized. Other scholars have also highlighted another problematic relationship during public emergency situations: that of the legislature and elected politicians vis-à-vis medical-scientific experts. They argue that extensive legislative and executive decision-making authority has been delegated to medical-scientific experts, whose role has metamorphosed from decision-making input into decision-maker.
It has been proven that slowing down or stopping the spread of COVID-19 requires measures that have a profound impact on the lives of citizens, the economy and society as a whole. These measures require more and not less parliamentary scrutiny. In times of crisis, parliaments have a duty to ensure that all measures taken result in enhanced protection and support of every person – especially the most vulnerable.
Dr. Tedros, World Health Organization (WHO) Director General has in the past spoken about legislative measures that parliaments can take to tackle the Covid – 19 pandemic. He is reported to have recently said, whilst addressing a meeting of global parliamentarians that:
“As a former parliamentarian myself, I know the critical role parliaments can play in enhancing resilience against health emergencies like COVID-19. Parliaments can establish legislative measures to govern, enable and support risk management measures,”
Dr. Tedros also observed that: “The pandemic has also highlighted the importance of implementing the International Health Regulations and the Sendai Framework for Disaster Risk Reduction.” The Sendai Framework for Disaster Risk Reduction 2015 -2030 aims to achieve the substantial reduction of risk and losses in lives and livelihoods and health in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries over the next 15 years. It outlines seven clear targets and four priorities for action to prevent new and reduce existing disaster risks.
Dr. Mike Ryan, Executive Director, WHO Emergencies Programme, is on record for saying people often ask him what the most important things in emergency management are and he usually answers three things...“governance, governance, governance.”
Experience has taught that in public emergencies the rule of law matters. Human rights matters. The most important thing in responding to emergencies is governance and leadership, trust between the leadership and the people leads to a solid social contract that allows citizens to accept interventions that are not comfortable. Parliamentary Clerks are part of the broad leadership of the legislative branch.
The Covid -19 pandemic has shown that only an effective and efficient leadership can ensure sufficient public health workforce and adequate health system capacity to treat, test and trace. The most abiding lesson being that communities must be fully engaged and empowered to know what they can do to protect themselves.
In conclusion it is important to highlight the obvious: all the countries in the SADC region must follow their constitutions and other laws, including international rule of law and human rights standards when dealing with public emergencies. It is normal to curtail fundamental human rights and freedoms while fighting existential threats, but care should be taken by governments not to overstep and excessively impede rights and freedoms in response to public emergencies. Declaration of permanent and or unduly long state of emergencies must be avoided, as that could lead to the removal of checks and balances and undermine the rule of law.
*This is a paper presented by Professor Justice Oagile Bethuel Key Dingake at the SADC –PF Second Meeting of Clerks/ Secretary General of the SADC Parliamentary Forum recently