Log in
Updated few hours ago

Constitution and Covid-19: Are presidential directives unconstitutional?

President Yoweri Museveni

President Yoweri Museveni

The Coronavirus disease (Covid-19) has fundamentally challenged many aspects of international and national life that we had long taken for granted.

As at current count, over two million people around the world have tested positive for Covid-19, with more than 130,000 deaths thus far. In Uganda, 55 people have so far tested positive, and the government has already taken extraordinary measures to try to ensure that this figure remains low.

In the midst of this national and global crisis, it might appear insensitive–perhaps even distasteful to reflect on the legal questions arising in this moment. However, it is possibly precisely at such a time that we should be mindful of, and cling to, the safety and guidance to be found in law – and, in particular, the Constitution.

It is in this spirit that this short piece reflects upon the extent to which the government of Uganda can effectively respond to the challenge posed by Covid-19, while respecting and complying with the safeguards stipulated under the 1995 Constitution.

STATE ACTION AND HUMAN RIGHTS IN ‘NORMAL TIMES’

It should be recalled that based on a very problematic national history – specifically invoked in the preamble to the Constitution – that document included a number of deliberate safeguards, aimed at ensuring that the human rights of Ugandans would never again be violated with impunity.

This is the spirit behind the design and content of Chapter Four of the Constitution (the bill of rights). In particular, article 43 of the Constitution set out an elaborate and delicate framework for balancing individual rights and broader public concerns.

On the one hand, Article 43(1) stipulates that, in the enjoyment of one’s rights and freedoms as prescribed in the Constitution, no person may prejudice the fundamental or other human rights and freedoms of others, or the public interest.

On the other, under Article  43(2), it is stressed that the term ‘public interest’, as employed under Clause 1, shall not permit political persecution, detention without trial or any limitation of the enjoyment of the rights and freedoms prescribed under the Constitution beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in the Constitution.

The formulation of Article 43(2) was deliberate – and each word as employed in that provision has particular significance. The effect of this provision was to set a high bar for the limitation of human rights.

It is important to stress the foregoing, because it has immediate and direct implications for the options open to the State in its response to the Covid-19 crisis.

It appears that, in the past fortnight, the President met with the Chief Justice Bart Katureebe, and the Speaker of Parliament Rebecca Kadaga, during which meeting the heads of the Judicial and Legislative branches of government urged the President to declare a state of emergency.

Apparently, however, an unnamed cabinet minister was able to dissuade the President from adopting this course of action. At the same time, several far-reaching measures were announced, and effected, to respond to the crisis: all schools and educational institutions were closed, incoming and outgoing passenger flights prohibited, movements of most persons within the country restricted and the majority of business restricted from operating.

Most, if not all, of these measures were purportedly taken under the authority of the Public Health Act. Now, in the face of the challenge we all face it is difficult to argue with the logical impulse behind the above measures. The available scientific consensus appears to be that the spread of Covid-19 is most effectively controlled by limiting movement; isolating those who might have been exposed to the virus and treating those who test positive.

The measures so far adopted by the State, therefore, seem to rhyme with the dictates of common sense. This being the case, should the discussion not end here? The answer, based on the problematic history recounted in the Preamble to the 1995 Constitution, is ‘no’.

While the measures outlined above appear sensible, they are, in fact, of doubtful legality, if subjected to the strict test under Article 43(2) of the Constitution. To take but one example – the blanket limitation on the operation of private vehicles, presumably based on the fact that some individuals were operating these on a commercial basis.

Can this be said to be acceptable and, especially, demonstrably justifiable?

One of these ways in which a measure can fail this high test is if it can be shown that the legitimate objective (the protection of public health in this instance) can be achieved through an alternative method which is less restrictive to human rights (in this case the right to movement).

In this regard, there are a range of less restrictive means to achieve this objective, including through impounding cars found to be carrying occupants who have no clear relation to the driver or owner of the vehicle in question.

Therefore, in my view, a number of the current measures instituted thus far–while evidently sensible – are actually of doubtful constitutionality. One might ask – and legitimately so: ‘so what?’. Why should we care about the law, in the face of a grave pandemic, which threatens the very life of the State?

One response to this is simply that the state should not open itself up to legal challenges which could have been easily avoided by more careful and considered action. At this critical juncture all distractions that can be avoided, should be avoided.

The second response, and perhaps the more fundamental one – is that it is critical at this moment for the law to be respected lest, in solving one crisis, we create another. If the law is bent ‘a little’ now, it may be too late, further down the road, to protest when it is bent so far out of shape that it is impossible for it to be as it was before.

Indeed, there have already been indications of such inclinations – with Local Defence Units (LDUs) and other security personnel adopting arbitrary and self-serving interpretations of even those directives already in place.

The first response to the ‘so what?’ question speaks to the interests of the State; the second the interests of the citizen. In light of this coincidence of interests, it can hopefully be perceived that there is an urgent need for the responses to the national crisis we face to be based on a scrupulous adherence to the dictates of the Constitution.

The question that then arises is: how can the state effectively respond to the crisis, while at the same time fully respecting the law? It is to this enquiry that we now turn.

CONSTITUTIONALISM IN TIMES OF NATIONAL CRISIS

The framers of the 1995 Constitution envisaged that there might be critical times in which – to guarantee the well-being of the State – the government would need to be given greater room for action.

DECLARATION OF A STATE OF EMERGENCY

In such grave times, the proper course of action appears to be that which the Chief Justice and Speaker urged upon the President, that is to say, to declare a state of emergency. If the President were minded to do this, I am sure the Attorney General and other persons who provide him formal and informal legal advice would point to the provisions of Article 110 of the Constitution.

The President is empowered, in consultation with the Cabinet, by proclamation, to declare that a state of emergency exists in Uganda, or any part of Uganda (Article 110(1)).

To make this declaration, external aggression; or ii) the security or the economic life of the country or a part of it, is threatened by internal insurgency or natural disaster; or iii) there are circumstances public safety, the defence of Uganda and the maintenance of public order and supplies and services essential to the life of the community. In the circumstances of Covid-19, the third ground would be a more than adequate basis for such a proclamation.

The President would be required to cause the proclamation declaring the state of emergency to be laid before Parliament for approval as soon as practicable and in any case not later than fourteen days after its issuance (Article 110(3)); and the state of emergency would remain in existence for not more than ninety days (Article 110(2)).

IMPLICATIONS OF STATE OF EMERGENCY

The declaration of a state of emergency would be of major legal significance in terms of granting the state greater latitude in responding to the public health challenges posed by Covid-19.

The implications of this become apparent when one carefully scrutinizes the provisions of, especially, Article 46(1) of the Constitution. Under Article 46(1), an Act of Parliament shall not be taken to contravene the rights and freedoms guaranteed under the Constitution if that Act authorizes the taking of measures that are ‘reasonably justifiable for dealing with a state of emergency’.

The difference between this legal standard and that under Article 43(2) is subtle – but extremely important. The threshold for review of state action under Article 46(2) is significantly lower than that stipulated under Article 43(2).

The measures instituted during a state of emergency are only required to be ‘reasonably justifiable’, as opposed to the strict requirement - in ordinary times - for them to be ‘acceptable and demonstrably justifiable in a free and democratic society’.

It is also noteworthy that, while under Article 25(2) of the Constitution no person may be required to perform forced labour, in terms of Clause (3) (d), the term ‘forced labour’, as used in that Article, does not include ‘any labour required during any period when Uganda is at war or in case of any emergency or calamity which threatens the life and well-being of the community, to the extent that the requiring of the labour is reasonably justifiable in the circumstances of any situation arising or existing during the period or as a result of the emergency or calamity, for the purpose of dealing with that situation’.

Article 25 thus reiterates the lower standard - of reasonable justifiability - applicable in a state of emergency. In addition, Article 46(3) envisages that an Act enacted to deal with a state of emergency would be permitted to provide for the detention of persons ‘where necessary for the purposes of dealing with the emergency’.

LIMITATIONS WITHIN THE LIMITATIONS DURING A STATE OF EMERGENCY

At the same time, a declaration of a state of emergency would be accompanied by a number of important in-built constitutional safeguards to ensure that human rights continue to be respected and protected – while ensuring that the state has the necessary room for effective action.

Non-derogable rights

In the first place, it must be recalled that, under Article 44, notwithstanding anything in the Constitution, there can be no derogation from the enjoyment of the following rights and freedoms: i) freedom from torture, cruel, inhuman or degrading treatment or punishment; ii) freedom from slavery or servitude; iii) the right to fair hearing; and iv) the right to an order of habeas corpus.

The rights under Article 44 are, therefore, placed above reach of limitation – whether in ‘normal times’ or under a state of emergency. Any declaration of a state of emergency would thus have no adverse legal impact on those rights.

Rights of a person restricted or detained

Additionally, under Article 47 of the Constitution, a person restricted or detained under a law made for the purpose of a state of emergency:

i) would have, within twenty-four hours after the commencement of the restriction or detention, to be furnished with a statement in writing specifying the grounds upon which they are restricted or detained;

ii) their spouse or next-of-kin of or other person that the person restricted or detained may name, would have to be informed of the restriction or detention and allowed access to the person within seventy-two hours after the commencement of the restriction or detention; 

iii) in not more than thirty days after the commencement of their restriction or detention, a notification would have to be published in the Gazette and in the media stating that they had been restricted or detained and giving particulars of the provisions of the law under which their restriction or detention was authorized, as well as the grounds of their restriction or detention.

Review of detention by the Uganda Human Rights Commission

The Uganda Human Rights Commission would be required to review the case of a person any person so restricted or detained, no later than twenty-one days after the commencement of the restriction or detention; and after that, at intervals of not more than thirty days (Article 48(1)).

Ministerial accountability to parliament redetained or restricted persons

In every month in which there is a sitting of Parliament, the Minister responsible would have to make a report to Parliament in respect of: i) the number of persons restricted or detained under the state of emergency; and ii) actions taken in compliance with any findings of the Uganda Human Rights Commission (Article 49(1)).

Release at the end of the emergency

At the end of the emergency declared under the Constitution, any person in or under restriction, detention or custody as a result of the declaration of emergency, would have to be immediately released, unless charged with a criminal offence in a court of law (Article 49(3)).

THE IMPORTANCE OF TRANSPARENCY:

In the foregoing Section, we have endeavoured to show that, through declaring a state of emergency, the government would be allowed greater scope for taking necessary and effective measures to respond to the Covid-19 crisis, that would otherwise be allowed in normal times.

We have also tried to demonstrate the ways in which, under the Constitution, such exercise of power would continue to be balanced against the respect and protection of fundamental human rights.

There is, however, another critical consideration in this regard. Under the Constitution, the state of emergency - and the responses there under - require various institutions of government to cooperate. Power in this instance would have to be shared, with the result that certain critical checks would exist to prevent the abuse of power by any one branch.

In the first place, as noted in Section 3.1, the declaration of the state of emergency by the President would have to be made following consultation with the Cabinet and would have to be laid before the Parliament within fourteen days.

In addition, any extension of the state of emergency beyond the initial ninety days provided under Article 110(2) could only be done by Parliament (Article 110 (4)),12 and even then for only ninety days at a time; and for the duration of the state of emergency, the President would be required to submit to Parliament.

At such intervals as Parliament would prescribe, regular reports on actions taken by or on his behalf for the purposes of the emergency (Article 110(6)). The power to revoke the proclamation declaring the state of emergency is also one which could be exercised either by the President or Parliament, if either of them are satisfied the circumstances which necessitated it had ceased to exist (Article 110(5)).

13 It is also significant that, Parliament would be empowered to enact such laws as would be necessary for enabling effective measures to be taken to dealing with the emergency (Article 110(7)).

The provisions of Articles 48 and 49, examined in Section 3.3 above, also envisage, and outline, clear roles for the Uganda Human Rights Commission and the responsible Minister (in this case presumably the Minister of Health) - and demarcate the ways in which they would be required to interact with each other and with Parliament in dealing with the emergency.

The role of the judiciary would also be necessarily preserved and protected, as the body charged with reviewing executive and legislative action for consistency with the constitutional safeguards outlined above.

It is also important to point out, in this regard, that in terms of Article 209(b) of the Constitution, one of the functions of the Uganda Peoples’ Defence Forces (UPDF) is to cooperate with the civilian authority in emergency situations and in cases of natural disasters.

The UPDF therefore also has a role to play in this regard – in terms of supporting (not supplanting) the efforts and functions of the civilian authorities as elaborated under the Constitution.

Clearly, therefore, there are definite and immediate advantages attached to the declaration of a state of emergency, in terms of establishing a clear and transparent legal basis for effective state action in responding to Covid-19; while at the same time ensuring that:

i) such a response is delicately balanced with the protection of human rights; and

ii) the response is institutional rather than individualized. To be clear, while the guidance and leadership of the President in the current crisis is necessary and welcome, the Constitution did not envisage that he would be the sole or dominant actor in this regard. Rather it envisaged, and required, institutional action and cooperation in meeting

any national emergency. It must be acknowledged, given the dynamics of the Ugandan State, that a declaration of a state of emergency may have additional implications, and complications, including: the possible extension of the life of Parliament; the possible postponement of the presidential elections; and the possible takeover by the central government of the powers of districts or regional governments.

However, all factors considered, both the State and citizens would be better served by the transparency and legal certainty that would be provided by the declaration of a state of emergency. At the very least it would ensure institutional checks and balances in determining the appropriate response to the crisis.

CONCLUDING THOUGHTS

We end with where we started, by recognizing that these are most uncertain times, which have confounded, and in many respects overwhelmed, a number of States with a longer institutional tradition. Indeed, thus far, the response of the Ugandan state has been more rational and effective than that of many other States around the world.

This is, therefore, not a flippant condemnation of the measures taken by the State thus far. The various officials involved are, no doubt, doing their best in a difficult and uncertain time. Rather, it is a call for the government to now do one better – and ground its response to the Covid-19 crisis on a firm constitutional footing.

It is the right thing to do, for the State, and for the citizens of Uganda.

The author is a constitutional scholar and law lecturer at Makerere University

Comments

0 #1 karemire 2020-04-16 02:04
look here: The SPIRIT behind the measures that have been taken so far are rational and necessary for curtailing the read f the virus.

However, they are unconstitutional. Those presidential directives/ decrees would be constitutionally right if FIRST a "state of emergency " was declared by the Parliament.

M7 ignored the Parliament and the due process relating to the declaration of state of emergency and he [illegally] assumed the powers to rule by decree. [please read my earlier comments about this issue].
Report to administrator
0 #2 kirya 2020-04-16 19:51
m7 follows m7's law as he is the law leading the people who lost faith in him ages ago.

I pray the virus reaches the state house and spreads to the bush generals and all the land grabbers!
Report to administrator
0 #3 Apollo 2020-04-17 16:37
Dr. Kabumba, it not simply right but highly necessary.

There is a consequence and an implication in Gen. Museveni's directives. Several victims of the unconstitutional actions taken by the President may seek redress from court as a consequence.

The implication, which you may have deliberately sidestepped is the need for a constitutional review that should deprive the President of the power to decide if/when a State of Emergency should be declared.

Narcissists like Gen. Museveni can only be tamed by provisions that hand the power for declaration of a state of emergency to a non-executive arm of Government, preferably both the legislature and judiciary. This would be a cure against executive dictatorship.
Report to administrator
+1 #4 kirya 2020-04-19 21:50
The Parliament is m7's underpants, They are useless like used toilet paper. They are there to take care of their business.

When he throws them a few shillings they praise him like he is a little god. Ugandan s should put all these animals on a no visa list. Corona virus should spread in the peoples house.
Report to administrator

Comments are now closed for this entry