Solomon A. Dersso (PhD) @SolomonADersso
Addis Abeba, April 04/2020 – Indications are emerging that Ethiopia is heading for a full lockdown. To be more accurate, the Federal Government seems poised to bring the measures it adopted against the novel coronavirus (COVID-19) to the level of the governments of the Federal Units. This would mean some form of lockdown.
The indications can be gathered from some of the announcements of government institutions. The Ministry of Labor and Social Affairs have reportedly announced a plan for taking homeless people into camps. The Minister of State of the Ministry of Finance told Ethiopian Television that there is a plan to use the food reserve of the country. The city’s vegetables market has also been moved to one of the biggest open spaces in the city, ‘Jan-Meda’.
Similar indications also come from the measures that major non-state actors have announced during this past week. After nearly two weeks of reluctant measures, the major religious institutions of the country went beyond the half measures they adopted and announced suspension of regular activities.
On 31 March, the Ethiopian Islamic Affairs Supreme Council informed the public that all mosques will be closed and all teaching and learning as well as prayer activities will be suspended for the duration that #COVID19Ethiopia lasts. The next day the Holy Synod of the Ethiopian Orthodox Church followed suit announcing that followers of the Church should pray from home. Prayers in the Church and the holy liturgy will be conducted only with a limited number of priests.
While the Federal Government has been adopting measures in respect to COVID-19 in piecemeal fashion since 16 March, there has been little clarity around the legal basis on which the measures are founded. Similarly, questions abound on the legal status of the measures themselves.
If indeed these measures result in restrictions on the rights enshrined in the Bill of Rights Chapter of the Constitution and those protected in international treaties that Ethiopia is a party to, such as the African Charter on Human and Peoples’ Rights, it is imperative that these measures are anchored on a duly established legislation or else will end up lacking constitutional and legal legitimacy. This is particularly the case if indeed the federal government is to expand the measures to a level of total lockdown similar to those adopted in Rwanda, South Africa, UK or Uganda.
The principle of legality is a cornerstone of constitutionalism and the rule of law. As an established principle of constitutional law and indeed human rights law in general, it requires that any limitation or restriction on human rights have to be based on a duly enacted law of general application.
Ethiopia responds to COVID19 amid lack of legal clarity
Ethiopia was among the first group of African countries to constitute a Ministerial Committee for mobilizing coordinated response to COVID-19 on 29 February. This was announced in a press release of the Office of the Prime Minister, not in official gazette. No reference was made in the press release to the specific legislation on the basis of which the Committee was established. No decree was also adopted outlining the nature and scope of the mandate of the Committee. The press release indicated that the measures would last for a period of two weeks.
Elevating the threat COVID-19 poses to global public health to the highest level, on 11 March the World Health Organization (WHO) declared a global pandemic. Although the Ministerial Committee held a meeting on the following day, it reviewed the preparations to respond to the pandemic but concluded without adopting any set of prevention and containment measures. On 13 March, the first case of COVID-19 in the country was confirmed. During the following two days, the number of confirmed cases increased to 3. Yet, activities involving large gatherings including big political events and sporting activities were held in Addis Abeba on the weekend of 14 and 15 March with little regard to the social distancing measures that the WHO and African Union’s Africa Center for Disease Control required and many countries having COVID-19 cases adopted.
On 16 March, following a meeting of the COVID-19 Ministerial Committee, Prime Minister Abiy Ahmed announced the first set of measures to be implemented in response to COVID-19. These measures were announced again in a press release, not in an official gazette. The formulation of the language on the measures adopted was unclear on whether the measures have the force of law. Both the medium used for publicizing the measures (press release) and the formulation of the language used in defining the measures indicate that in general terms the measures are not intended to have a force of law.
The lack of precision in the language used on what is prohibited or what is expected suggests that the measures announced are recommendatory. For example, in outlining the first major measure, the press release provided for ‘large gatherings and meetings to be postponed including sporting events.’ While Germany banned meeting of more than two people, the US 10 and South Africa 100 using instruments having the force of law, what constitutes large gatherings was not defined in the press release announcing the measures. Similarly, the 16 March press release provided for ‘religious institutions and places of worship to limit gatherings’, again with no specifics on what limiting gatherings entailed.
The only aspect of the measures announced that was clear enough to implement and sounded like a requirement was the one stipulating closure of all schools. Even then, the press release made an exception in respect to institutions of higher learning, which in legal terms was not rational from the perspective of risk of spread of COVID-19, hence the subsequent decision to close these institutions as well. Crucially, such a measure that leads to the closure of public and private institutions and disrupts the right to education is introduced with no reference to any particular law that governs the adoption of such measures by government. Indeed, there exists no current law in force that gives authority to any entity to close schools across the country except where a state of emergency is declared in accordance with Article 93 of the Constitution. At the time of the closure of schools and since then, no state of emergency has been declared by the Federal Government.
Further additional measures announced before the end of the two-week period
Before the end of the two weeks period of the first set of measures announced on 16 March, further additional measures were announced on 23 March. Again, no reference was made to the specific legal authority on the basis of which these measures were introduced. The formulation of the measures, lacking precision and clarity, also raises questions on whether they are meant to have the force of law. The medium used for announcing the measures also casts doubt that the measures were intended to have the force of law.
The 23 March press release, announcing the new set of measures, stipulated ‘[a]s of 23 March 2020, the security sector will begin to enforce measures taken by the Ministerial Committee to cease large gatherings and maintain social distancing’. The security sector would seem to cover the army but this begs the question on whether these are the kinds of tasks and circumstances for which the army is to be deployed envisaged in the applicable law and in the absence of declaration of a state of emergency. Even in terms of the restrictions on gatherings, instead of limiting all meetings, the press release provided that ‘Government institutions, including political parties, (sic) to adhere to social distancing and preventive measures when convening meetings’. No distinction is made here as to whether such meetings are big or small. Obviously, this raises questions on the rational for allowing such institutions to continue holding meetings while others are prohibited and whether such rational stands the test of constitutional or legal scrutiny. In a nod to the stay at home message, the press release stated that ‘Government institutions to facilitate working from home options on a case by case basis for some employees’. Again, this is couched as recommendation.
Similar to the measures adopted on 16 March, one of the measures introduced on 23 March that was clear enough to be implemented with little ambiguity and sounds like a requirement is that which called for the ‘National Defense Forces to halt the movement of people along all borders.’ Yet, this is not declared in an instrument that signifies a force of law such as decree proclaimed in an official gazette.
Finding the sources of legal authority of COVID19 measures in Ethiopia
Like Ethiopia various other countries have introduced measures for the prevention and containment of COVDI-19. In general, these countries adopt these measures based on a duly promulgated legislation, either in force prior to the adoption of the measures or introduced when adopting the measures. In South Africa, President Cyril Ramaphosa declared the COVID-19 pandemic as creating a national state of disaster and announced a range of measures including 21 days of lockdown. In announcing these measures, he made reference to and relied on the Disaster Management Act 57 of 2002. Similarly, in Uganda, the legal authority for the measures are presidential proclamation and Statutory Instruments under the Public Health Act. The same is true for Kenya. The measures that Kenya adopted were introduced via the Public Health (Control of COVID-19) Rules, 2020 drawing on the legal authority established in the Public Health Act of Kenya.
The same is true in other countries that faced COVID19 such as South Korea or Taiwan. In Taiwan, the Command Center was established based on the Act on the Center for Disease Control and the details in the CDC Act were supplemented with the Special Act for Prevention, Relief and Revitalization Measures for Pneumonia with Novel Pathogens (Special Act or COVID19 Special Act), which specified the special fiscal and other socio-economic relief measures.
The lack of clarity on the source of legal authority on the basis of which the Federal Government of Ethiopia introduced the various measures to deal with COVDI19 stands in contrast to the experience of all these and many other countries. Indeed, it stands in contrast to the approach taken by the Regional State of Tigray, one of the nine units of the Ethiopian Federation. Although it came after the second set of measures announced by the Federal Government, Tigray announced measures in response to COVID-19 on the basis of a declaration of a state of emergency. On 25 March, the Tigray State Council, the legislative body of the regional government, adopted a bill submitted to it by the executive arm of the government declaring a state of emergency within the framework of Article 93 of the Federal Constitution of Ethiopia.
It is true that there are some relevant legal provisions in various Federal legal instruments. However, these are scattered in various pieces of law of different authority. These potentially relevant legal provisions are very sketchy, hence lacking the required specificity on scope of enforcement of measures and the timeline of such measures.
The relevant provisions are to be found among others in the proclamation defining the authority of the Ministry of Health, the regulation establishing the Ethiopian Public Health Institute, and the Criminal Code of Ethiopia. There are certain powers entrusted to the Ministry of Health under Article 27 of Proclamation no. 1097/2029, which defines the powers and duties of the executive organs of the Federal Government. Article 27(6) stipulates that the Ministry shall ‘devise and follow up the implementation of strategies for the prevention of epidemic and communicable diseases’. This principally deals with the preparation of strategy ahead of the emergence of epidemic or communicable diseases. Perhaps, more relevant is Article 27(7) providing that the Ministry shall ‘take preventive measures against events that threaten the public health; in the events of an emergency situation coordinate measures of other stakeholders to expeditiously and effectively tackle the problem’. While clearly this is relevant for purposes of the COVID19 pandemic, the operationalization of this provision is predicated on another implementing law (decree or regulation) that defines how, what kind and by whom measures are to be taken in cases of a public health emergency or a declaration of a state of emergency under Article 93 of the Constitution.
The other source of law that has potential relevance is the regulation establishing the Ethiopian Public Health Institute. Regulation No. 301-2013 empowers the Institute to conduct, during epidemics or any other public health emergency or public health risk, on sight investigation when deemed necessary, verify outbreaks, issue alert, provide warning and disseminate information .., mobilize or cause the mobilization of resources, support the response activities carried out at wordas, zones, and regional levels as deemed necessary’. The Institute is also empowered ‘to design strategies, issue guidelines, …provide support to prevent and mitigate public health emergencies.’ Additionally, the Institute is entrusted with the mandate to, ‘in collaboration with the concerned authorities, conduct surveillance for early identification and detection of public health risks and prevent public health emergencies through adequate preparedness; and alert, warn, and dispatch timely information during public health emergency…’
Article 522 of the Criminal Code of Ethiopia provides that ‘whoever intentionally disregards the measures prescribed by law for the prevention, limiting or arrest of a communicable human disease is punishable with simple imprisonment of not exceeding two years or fine’. As it is evident from this provision, it is a prerequisite that the measures are prescribed by law for this article to come into application.
Apart from the fact that these provisions are general and require implementing legal instruments that should stipulate the type and scope of measures to be undertaken on the basis of these provisions, the entities that have the responsibility for enforcing these measures, the experience of countries cited above show that there is a need for specifying the timeline and conditions under which these measures remain in force. Such critical provisions that set the boundaries of the government bodies that engage in the application of the measures are currently lacking.
Options for legislating the COVID-19 measures in Ethiopia
There is a shadow of legal uncertainty that is cast on the COVID-19 measures that have so far been adopted and those that may be adopted in the days to come. There are two options for the Federal Government for legislating the COVID19 measures and removing the uncertainty surrounding the legal status of these measures.
The first of these options is to follow the example of the Regional State of Tigray and declare a state of emergency under Article 93 of the Federal Constitution. The legislation on the state of emergency can cover all the issues to be addressed ranging from the formulation of public health measures in clear legal terms to the fiscal measures involving the appropriation of special budget for responding to the socio-economic impact of COVID-19. While its downside is that it would be limited in its application to COVID-19 situation, a state of emergency legislation is perhaps much easier and can meet the emergency nature of the situation as well as the requirements of constitutionality and legality.
Declaration of State of Emergency allows the adoption of legislation with speed, but it is not the only option. The other option could be to adopt a new law on the control of COVID-19 in Ethiopia or a general law on the prevention and control of a public health epidemic in Ethiopia. The value of such general law lies in the fact that such law will be applicable for dealing with various public health emergencies. While this has the advantage of governing future similar public health threats, it can be time consuming and it would still require to inscribe the prevention and containment measures in an implementing regulation to ensure that those measures carry the force of law. Perhaps, this is an option worth pursuing in normal times after the current COVID-19 induced public health emergency has come to an end.
The Federal Government has the constitutional power and indeed obligation to adopt measures for preventing and containing COVID-19. This by itself alone is not enough for the constitutional and legal conformity of these measures. Whether the prescription of these measures is on the basis of and through a law of general application is of paramount importance.
The measures that states including Ethiopia have adopted to deal with COVID-19 include those requiring suspected individuals to undergo testing (which if done by force results in violation of the rights to physical security and privacy), quarantine (which limits the right to liberty of the person) and lockdown which lead to the freezing of social and economic activities entailing severe restrictions on freedom of movement, the right to work/livelihood, freedom of religion, freedom of assembly and freedom of association. Additionally, as highlighted from the case of Taiwan, the imperative of addressing the socio-economic impact of the various measures limiting movement and economic activities requires that the government gets additional budget from parliament for adopting relevant fiscal and economic policy measures.
All of these measures that have far reaching consequences on civil liberties and socio-economic rights of citizens have to be enshrined in dully enacted law of general application. This is a key measure of a commitment for rule of law and is a mark that distinguishes an absolutist government akin to a monarchical or dictatorial system with no limits to government power from a constitutional government with legally limited powers. This is also required to comply with the demands of accountability and transparency in the conduct of the Federal Government provided for in Article 12 of the Federal Constitution. AS
Editor’s Note: Solomon A. Dersso (PhD), currently serving as the Chairperson of the African Commission on Human and Peoples’ Rights, is founding director of Amani Africa. He also serves as Adjunct Professor at College of Law and Governance Studies, Addis Abeba University.
This article reflects the personal opinion of the author and the views expressed are not attributable to any of the institutions to which the author is affiliated.