Zemelak Ayitenew Ayele @zemelak_a
Addis Abeba, April 13/2020 – A number of countries have resorted to taking emergency measures to contain the COVID-19. While many of them did so with legitimate public health concerns in mind, some leaders, especially those with dictatorial tendencies, have used the virus as an excuse to centralize power in their own persons and offices. For example, Viktor Orbán, the increasingly authoritarian Prime Minister of Hungary, has secured the authority to rule by executive decrees for indefinite period of time from the country’s legislative house. The Congress of Philippines has also given Rodrigo Duterte, the country’s president, emergency powers in the name of containing COVID-19. Duterte is notorious for his disdain to basic human rights and freedoms of Philippians even under normal circumstances.
Alarmed by the ubiquity of SoEs owing to the COVID-19, the UN High Commissioner for Human Rights cautioned states to make sure that their ‘emergency responses to the coronavirus [are] proportionate, necessary and non-discriminatory’. The Commissioner further stated that emergency powers should not be used ‘to target particular groups, minorities, or individuals nor should they ‘function as a cover for repressive action under the guise of protecting health’.
Ethiopia declared a SoE for the sake of containing the pandemic. The Ethiopian Council of Ministers (CoM) resolved to declare a SoE on 8 April 2020 and, as per Article 93 of the Constitution, a draft proclamation on the SoE was endorsed by Parliament on 10 April 2020. On 11 April, the CoM issued a regulation detailing measures that will be taken to contain the virus.
There seems to be a general agreement among the populace and different political groups on the need for emergency measures to combat the virus. Yet the SoE has made many people anxious which should not come as a surprise since the Ethiopian government has in the past used emergency powers, including those which were not declared by the book, for targeting political opponents.
The SoE Proclamation in brief
The SoE Proclamation is very short with a preamble and just 8 articles. The Preamble states the SoE is necessary since COVID-19 has become a global pandemic which cannot be controlled through regular law enforcement methods. The adverse political, social and economic impacts of the pandemic and the need to mitigate the ensuing humanitarian crises, according to the Preamble, entail ‘coordinated’ decision making and implementation processes which in turn require the SoE. The Proclamation has a nationwide application and, as per Article 3, supersedes contradicting federal and state laws. Article 4 authorizes the CoM to define, through a regulation, rights and freedoms that would be suspended for the duration of the SoE. The Proclamation also imposes a criminal penalty on those acting or failing to act in accordance with its provisions. The penalty for such infractions is up to three years simple imprisonment or a fine ranging from ETB 1000 to 200, 000.
The SoE will remain in force for five months starting from 8 April 2020; the day the CoM declared it.
The CoM’s Regulation on the SoE
The Regulation issued by the CoM in accordance with the SoE Proclamation bans the gatherings of more than four people regardless of the motive. It also forbids handshaking; and requires buses, trains and other vehicles to use only half their capacity to transport people. According to the Regulation, clubs, bars, theaters and cinemas will remain closed. Cafeterias, restaurants, and hotels could continue providing services so long as they do not serve more than three people on a single table and there is sufficient space between tables. Schools will remain closed and education will be conducted online. Sports and games involving more than two people are banned. The country’s borders are closed and no one can enter into or leave the country except that Ethiopian citizens may enter into the country if and when CoM permits. Factual information with respect to COVID-19 will be communicated to the public in a centralized manner. Property owners are barred from evicting their tenants and raising rents during the SoE. Employers are also barred from dismissing their employees except in accordance with a protocol issued by the Ministry of Social Affairs.
The Regulation also compels some service providers to continue availing their services during the SoE. It also puts several obligations on individuals including the obligation to remain in quarantine if one travels into the country from abroad or if he/she is suspected of having the virus. The Regulation requires everyone to put on masks when one is in public spaces. In addition, it requires owners of vehicles, apartments, hotels or other properties to submit their properties to be used in the fight against the virus if and when a Ministerial Committee, which is established by the Regulation to lead the fight against the virus, so demands.
Is the Regulation too intrusive?
When seen in light of the gravity of the problems the COVID-19 poses and the urgent need to contain the virus, the restrictions and obligations in the Regulation of the CoM are not overly restrictive of rights and freedoms. Other countries, including western democracies, have imposed even more constraining measures. Moreover the restrictions in the Regulation have logical connections with preventing the spread of the virus.
There are however certain problematic provisions in the Proclamation and Regulation on the SoE. The centralization of information dissemination with respect to the COVID-19 dangerously threatens freedom of expression. There is also a good chance that some of the restrictions and obligations, including the obligation to submit one’s property for use in the efforts to contain the virus, may be abused by certain officials. It is also unclear if one who so submits his property would in return be financially compensated. Furthermore, the Proclamation imposes up to three years of imprisonment or up to ETB 250, 000 on anyone violating instructions that are given in relation to the SoE. This criminal penalty does not seem to be well thought out. It is also unclear from the Proclamation whether the CoM could impose specific penalties for infractions of certain provisions of the Regulation. In any case the Regulation is also silent on the matter. This clearly provides an ample opportunity for arbitrary decisions makings by law enforcement agents.
Providing counterarguments on each provision in the Proclamation and the Regulation on the current SoE is not the primary intention of this analysis but to raise two major issues in relation to how the SoE was regulated.
The first issue has to do with the fact that the Proclamation did not give any framework on rights and freedoms that the CoM can justifiably suspended and those whose suspension Parliament deems unnecessary or disproportionate to the problem. Is the wholesale authorization of the CoM to suspend any right it deems necessary constitutionally defensible?
The second issue is about the impact of the Proclamation and the Regulation on the country’s federal dispensation.
On the wholesale authorization of the CoM to suspend rights
As stated above, Article 4 of the Proclamation authorizes the CoM to define rights and freedoms it would suspend for the purpose of containing the pandemic. The legislature did not provide the executive with any indication, framework, or guidelines on the kind of rights and freedoms that the latter can justifiably suspend and the extent of the suspension except that it cannot suspend those rights whose derogation the Constitution prohibits. Fortunately the executive did not overstep its mandates this time and thus far. But has Parliament, by giving an unfettered discretion to the CoM, abdicated its responsibility of keeping the executive in check?
Providing the executive with unconstrained discretion to choose and suspend any right it deems fit is obviously problematic. However the problem emanates not from the Proclamation but from the Constitution. The Constitution envisages the role of Parliament to be simply to allow or disallow the declaration of SoE. Once it decides that there is a cause that requires a SoE, according to Article 93(4) (a & b) of the Constitution, the CoM will have a full discretion to determine which right or freedom to suspend and to what extent. Indeed Parliament can supervise the implementation of the SoE through a State of Emergency Inquiry Board it establishes. The Board however cannot question the decision of the CoM to suspend a particular right or freedom. Thus by giving a full discretion to the CoM in this respect Parliament did not act unconstitutionally. However, compared to other African constitutions (leave alone the constitutions of western democracies) our Constitution has four major deficiencies in the manner that it regulates a SoE and the suspension of rights during SoE.
First, as indicated above, it limits the role of Parliament to endorsing the declaration of SoE. Parliament is not involved in determining the measures that should be taken during SoE. This is for example unlike the case in South Africa and Kenya. In these countries a SoE and measures that would be taken during a SoE are declared by an act of Parliament and the constitutions of the countries do not provide the executive branch with the kind of discretion that ours provide to the CoM (s 37, RSA Constitution & s 58, Constitution of Kenya).
Secondly, Article 93(4) (b) authorizes the CoM to suspend any right and freedom except the non-derogable ones i.e. the right to equality, freedom form inhuman treatment and the right to self-determination of ethnic communities. (The Constitution puts the formal name of the country among rights that cannot be suspended even this is not freedom or right). As several human rights scholars have argued before, the list of non-derogable rights and freedoms leaves out several fundamental rights, including the right to life. Moreover, some of the rights and freedoms that are supposedly non-derogable are not fully so. For instance it is unclear how an ethnic community’s right to self-determination up to secession can be fully exercised under SoE while other rights that operationalize this right are suspended.
Thirdly, the Constitution does not provide the CoM with clear guiding principle on the suspension of fundamental rights and freedoms. For example the South African Constitution not only has a longer list non-derogable rights but also gives a guiding principle on to what extent a right can be derogated (s 37(5)). Hence it provides that the right to life and human dignity as ‘entirely’ non-derogable, other rights such as the right to equality and freedom and security of a person as partially non-derogable and other rights as fully derogable. It further provides that a suspension of rights has to be ‘strictly required by [an] emergency’ and is in conformity with the country’s ‘obligations under international law applicable to states of emergency’. Section 58(6) of the Kenyan Constitution similarly requires limitations on fundamental rights have to be ‘strictly’ required by an emergency. Such guidelines are missing in our Constitution. Article 93(4) (b) is not formulated in a manner that accentuates the limits on the authority of the CoM during SoE.
Fourthly, under our Constitution there is a complete absence of judicial oversight on the validity of a SoE. The South African Constitution (S 37(3)), for instance, provides that anyone can challenge in any court the validity of the declaration of a SoE, of any piece of legislation enacted or action taken in relation to the SoE, including the suspension or the extent of the suspension of a fundamental right and/or freedom. Similarly, the Kenyan Constitution (s 58(4)) authorizes the country’s Supreme Court to decide on the validity of the declaration or extension of a SoE. The role of the courts in checking the validity of SoE seems completely missing from our Constitution.
The SoE and federalism
The Proclamation and the Regulation on the SoE are expected to have a nationwide application. And, as per Article 3, the Proclamation supersedes contradicting federal and state laws. This is directly linked to the federal system and the constitutional division of power between the federal and state governments. It is not clear how much thoughts the drafters of the Proclamation put into Article 3. One would only hopes they did not take it lightly.
As argued in an earlier analysis both the federal and state governments have concurrent power of declaring a SoE. Accordingly, the Tigray state government declared its own SoE long before the federal SoE was declared, which the state council extended by three months. The cause of the SoE for both levels of government is the same – the spread of COVID-19. Does this mean the SoE of Tigray state is superseded by the federal SoE? Not necessarily. Ethiopia’s constitution allows both federal and state SoEs to exist side by side. Measures that are taken by the two levels of government in relation to the SoEs can also co-exist if they are contradictory. The measures in the CoM’s Regulation and those that are taken by the Tigray state government do not appear to be contradictory. The Tigray’s measures indeed seem more restrictive of freedoms that that of the federal government since the Tigray state government has banned travel from towns to rural areas within the state while the CoM’s regulation does not ban travel within the country. Yet, the measures the Tigray government took do not undermine the effort of the federal government to contain the pandemic. They can thus be viewed as complementary of the measures introduced by the federal government.
But what happens if the two levels of government adopt contradictory measures? Does the measure adopted the federal government automatically supersede that of the Tigray state? I have tried to deal with these issues in my previous piece. These are indeed controversial constitutional issues which deserve extensive debate and research. It suffices to say here that right now both levels of government have the same interest; containing the pandemic and preventing the looming social and economic catastrophe. Thus, as Adem Abebe suggests, they should avoid competitions on whose law should prevails and focus on cooperating to contain the virus. AS
Editor’s Note: The writer is Associate Professor and Director: Center 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. E-mail firstname.lastname@example.org.