Zemelak Ayitenew Ayele (@zemelak_a)
For Addis Standard
Addis Abeba, March 28/2020 – It has now been almost four months since the Corona virus – COVID-19 as it is named by the World Health Organization (WHO) – was first detected in Wuhan Province of China and several weeks since it was declared by WHO a global pandemic. Now the virus has spread to nearly every country in the world even though countries such as the USA, China, Italy and Spain are more affected by the virus than others. At the writing of this piece, over half a million people worldwide had been infected by, and over 20 thousand have died due to the virus. The virus is still spreading at a frightening rate.
Countries have implemented various measures to contain the spread of the virus including closing their borders. Several others have also imposed a complete lockdown as did quite a few states, such as, California and New York, in the US. Citizens are asked, in a few cases coerced, to remain indoors for several weeks now.
The first case of COVID-19 was confirmed in Ethiopia on 13 March 2020 when a Japanese national who flew from Burkina Faso to Ethiopia was tested and found infected by the virus. At the time of the writing, a total of 16 cases were confirmed by the Ministry of Health despite the pervasive suspicion that the virus might have spread undetected.
Initially, the federal government took certain minimal measure to prevent the importation of the virus. It began taking incrementally restrictive and intrusive measures after the first case was confirmed. The states and local governments (woredas and cities) remained largely inactive and did little to contain the COVID-19. Quite the contrary, packed in small community halls, regional and local officials continued taking part in political trainings organized by the ruling party – Property Party (PP) Even after the confirmation of the first case, the states limited their activities to attempting to create awareness on the gravity of the danger that the virus poses using their media (TV and radio). Now some of the states have begun taking more serious measures. They have established ad hoc committees which are entrusted with coordinating activities in the fight against the COVID-19. The state of Tigray stands apart from the rest in taking a drastic measure to contain the virus. On 25 March 2020, the Tigray State Council endorsed a bill submitted to it by the state cabinet declaring a state of emergency (SoE) within the state with the aim to preventing the spread of the pandemic.
The virus has revealed the strengths and exposed the flaws of a federal system in dealing with a global pandemic. In some cases it has given subnational units the necessary authority and a much needed flexibility to act quickly for containing the pandemic. A case in point is the lockdown order by the State of California while the federal government was still playing down the seriousness of the problem. In other cases states were seen engaged in unproductive competitions to acquire medical equipment. According to Andrew Cuomo, the Governor of the state of New York, competitions among states pushed manifold the prices of some medical equipment. In any case it is not my purpose to evaluate the effectiveness of a federal system in managing a global pandemic. I rather seek to raise three issues in relation to how the Ethiopian federal and state governments reacted to the virus. The first issue is whether the measures that the federal government took in the name of containing the virus were constitutionally defensible. The second issue is whether the government of the Tigray state acted within its constitutional mandates when declaring SoE. The last issue is whether the SoE that the Tigray state government has declared would remain valid if/when the federal government also decides to declare a nationwide SoE to the same effect.
Restrictive measures of the federal government and their constitutional basis
As mentioned above, the federal government is taking increasingly restrictive measures since 13 March. It has banned the Ethiopian Airlines from flying to several cities, even though cities in the most affected countries, such as China, were not in the list. It has also declared that anyone coming to the country from abroad, including Ethiopian citizens, would be quarantined for 14 days at their own expenses. As some reports show, those who could afford are quarantined in hotels while the rest are made to stay in public schools and other less than comfortable places.
These measures obviously put sever limitations on some of the fundamental rights of the individuals quarantined, including their freedom of movement and their right to return to their own country. It is however unclear what constitutional handle the federal government leaned on to impose such restraining measures. Indeed under article 93(1), it is authorized to impose SoE, among other things, to prevent the spread of a pandemic such as the COVID-19. After having declared SoE the federal government can lawfully restrict certain freedoms, including freedom of movements. However it can impose SoE by following the procedure laid under Article 93(2) of the Constitution. As per this provision, a bill declaring SoE has to be endorsed by the House of Representatives (HPR) with two-third majority. Once the declaration of SoE is so approved, the federal government would be able to impose restrictions on certain freedoms and liberties, on the condition that the restrictions are justified by and logically linked to the pandemic. Thus far, the federal government has not declared SoE. The restrictive measures it has imposed are therefore constitutionally suspect.
One can argue that declaring SoE would have been counterproductive since it would have caused people to panic and that it would have gravelly hurt the economy. However good intentions do not render arbitrary restrictions of fundamental rights constitutionally permissible. This does not mean that fundamental rights can never be justifiably limited in the absence of SoE. Certain substantive and procedural criteria have to be complied with before so doing.
The constitutionality of the SoE by the Tigray region
As can be seen from the comments circulating on social media, the SoE that the Tigray state government decreed has created some bewilderments. Some question whether the state, or any state in Ethiopia, has a constitutional power to declare SoE. Others link the declaration of SoE by the Tigray state with the political face-off between the Tigray People Liberation Front (TPLF) and the federal government. It is no secret that the TPLF is not in good terms with the federal government. There are many who view the declaration of SoE by the Tigray state as an action intended to show the region’s defiance against the federal government.
It should be noted though that the federal Constitution authorizes both levels of government (federal and state) to declare SoE, among others, when an epidemic occurs. The power to declare SoE in case of pandemic falls within the category powers known as concurrent powers. These are powers that both level of government can simultaneously exercise. The two levels of government can thus impose SoE when an epidemic occurs independently of each other. Indeed the SoE of the federal government, depending on the situation, can have a nationwide application while a SoE which is declared by a state is always applicable only within the territorial jurisdiction of the state. Perhaps what would have been an issue is whether the COVID-19 could be viewed as pandemic justifying the declaration of SoE by a state government. This issue was settled when the WHO declared it a global pandemic. The Tigray state thus acted within its constitutional mandate when declaring SoE to contain the spread of the COVID-19.
What will happen to Tigray’s SoE when (since it is becoming less and less a matter of ‘if’) the federal government eventually decides to declare countrywide SoE? Is there going to be a double SoE in the country? This begs a more general question that ‘what happens when two levels of government at once exercise a concurrent power?’ The answer to this question differs from one federal system to the other. It is also dependent on the nature of the concurrency. It suffices to say here that the mere declaration of SoE by the federal government and a state government in Ethiopia when a pandemic threatens the health of the people does not necessarily raise constitutional issue. The two SoEs can exist side by side.
The issue rather is what happens when, having declared SoE, one level of government seeks to use a measure that is more or less restrictive of freedoms and liberties than the other. For instance, we now know that the Tigray state has forbidden any movement to and from rural areas within the state to prevent the spread of the pandemic into rural areas. What will then be the case if the federal government, after having declared its own nationwide SoE, decides that that it would suffice, for example, only to require everyone to wear a mask and a glove and that restricting the people’s movement is unnecessary? The Constitution does not give us clear answers to these questions. But I think two opposing arguments can be proffered with respect to this issue. One argument can be that in general a governments is required to use a measure that least limits and intrudes into individuals’ freedoms during a SoE. Thus the Tigray state has to follow the federal government if the latter adopts a less intrusive measure to prevent the pandemic. The state should stick to its own measure if, on the other hand, the federal government adopts a more restrictive measure than the one the former has adopted. The opposite argument would be that when what necessitates SoE is an epidemic, the level of government that imposes limited restrictions is likely to undermine the efforts to contain the pandemic of the level of government that uses a more restrictive measure. Hence a state must be required to adopt the measures that the federal government adopts if those are more restrictive than the ones adopted by the state. However a state should be at liberty to use a more restrictive measure than the one used by the federal government for the purpose of containing pandemic. Thus when the federal government declares SoE, if prohibiting people’s movement to and from rural areas is not included in the measures the federal government introduces to contain the pandemic, the Tigray state should be allowed to enforce its own measure. If on the other hand the federal government orders a total lock down, the Tigray state should be required to follow suit. I find the latter argument more convincing than the former. AS
Editor’s Note: The author is Associate Professor and Director: Centre for Federalism and Governance Studies, Addis Abeba University; Extra-ordinary Associate Professor at the Dullah Omar Institute (DOI), University of the Western Cape (UWC) South Africa. He can be reached at Zemelak.firstname.lastname@example.org.