Connect with us
Advertisement

Is a six months State of Public Emergency necessary to fight Covid-19?

On 31st March 2020, His Excellency the President, Dr. Mokgweetsi Masisi, in terms of section 17 of the Constitution of Botswana (the Constitution), declared a State of Public Emergency (SoPE) to deal with the Corona virus pandemic (Covid-19).

It is this SoPE that the President seeks to be approved by Parliament for a period of six months. It is apposite that we reproduce section 17 of the Constitution considering its centrality to the subject matter.

Section 17(1) provides that “The President may at any time, by Proclamation published in the Gazette, declare that a state of public emergency exists.” It is this section that the President relied upon when he declared the SoPE.

Section 17 (2)(a) provides that “A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect in the case of a declaration made when Parliament is sitting or has been summoned to meet within seven days, at the expiration of a period of seven days beginning with the date of publication of the declaration.”

Section 17 (2)(b) provides that “A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect in any other case, at the expiration of a period of 21 days beginning with the date of publication of the declaration, unless before the expiration of that period, it is approved by a resolution passed by the National Assembly, supported by the votes of a majority of all the voting members of the Assembly.”

It is because of sections 17(2) (a) and (b) that the President summoned Parliament to sit on 8th April 2020 to consider his motion to approve the SoPE.

Section 17(3) provides that “Subject to the provisions of subsection (4) of this section, a declaration approved by a resolution of the National Assembly under subsection (2) of this section shall continue in force until the expiration of a period of six months beginning with the date of its being so approved or until such earlier date as may be specified in the resolution:  Provided that the National Assembly may, by resolution, supported by the votes of a majority of all the voting members of the Assembly, extend its approval of the declaration for periods of not more than six months at a time.”

It is in terms of 17(3) that the President has asked Parliament to endorse his proposal for the SoPE to last for a period of six months. Section 17(4) provides that “The National Assembly may by resolution at any time revoke a declaration approved by the Assembly under this section.”

It is because of section 17(4) that the President has informed Parliament that should the Covid-19 situation abate he shall lift the SoPE immediately. Of course, the correct position of the law is that, in terms of section 17(4), once Parliament approves the SoPE, it will be for it to revoke the SoPE, not the President.

It is common course that, initially, the President had indicated that since he is only empowered to declare a SoPE that lasts 21 days, he will be seeking Parliament’s endorsement for an additional 7 days to make the SoPE  run for 28 days.

However, the President later mentioned that following expert advice he will be asking Parliament to endorse the SoPE for a period of six months. Indeed, when Parliament resumed on 8th April 2020, the government tabled the motion for a six months SoPE.

The Umbrella for Democratic Change (UDC) opposed it fiercely and the Leader of the Opposition, Honourable Dumelang Saleshando, moved an amendment for the SoPE to run for 28 days but the motion was defeated.

Given the ruling Botswana Democratic Party (BDP)’s majority in Parliament, the approval of the six months SoPE has always been a formality. The question, however, is: Is a six months SoPE necessary to fight Covid-19?

In this article, we attempt to answer this question. In her debate in support of the six months SoPE, Honourable Dr. Unity Dow did so through a framework which I found very useful. I use her framework in this article.

The first concern that she implored us to consider is whether there are no other laws other than section 17 of the Constitution that can be used to fight Covid-19. The UDC has argued that there are. The question is: are there such laws? Before we answer this question, it is apposite that we remind ourselves of some of the things that the President said he wants to achieve through the six months SoPE.

According to him, he needs the SoPE because the Public Health Act is limited in relation to such aspects as expeditious procurement of essential supplies; enhancing the capacity of the health sector; protecting government from lawsuits; deployment of the armed forces, etc.

Let us start with procurement of essential supplies. As you are aware, the law that regulates public procurement and asset disposal is the Public Procurement and Asset Disposal (PPAD) Act, Cap.42:08 (PPAD Act).

Section 6 of the PPAD Act provides that “A derogation from the application of the relevant provisions of this Act in respect of sections 4 and 5 may be applied for to the Board, on the prescribed form, by the competent agency responsible for the procurement or disposal in question, with supporting documentation.”

I wish to submit that, in terms of section 6 supra, if, owing to the special circumstances presented by Covid-19, there is a need to depart from the PPAD Act, such a departure is already provided for and may be applied for to the Board.

Section 44 (1) of the PPAD Act provides that “Subject to subsection (2), there shall be no retroactive approval by the Board, or its Committees of any bid issued or invitation to tender by a procuring or disposing entity.”

Section 44 (2) of the PPAD Act provides that “The Board may resolve to issue a retroactive approval of any bid issued or invitation to tender where it is satisfied that a procuring or disposing entity was required to proceed with the bid or invitation due to an urgent requirement or emergency arising from special circumstances.”

I wish to submit that, in terms of section 44(2) supra, if, owing to the special circumstances presented by Covid-19, there is a need to make procurements without prior approval by the Board in terms of the PPAD Act, such procurement can be lawfully done with approval to be made later, retroactively.

The above sections of the PPAD Act can, therefore, allow essential supplies as required during Covid-19 to be procured expeditiously. There is, therefore, no need to rely on the SoPE for such a purpose.

We now deal with the deployment of armed forces. Section 48 (1) of the Constitution provides that “The supreme command of the armed forces of the Republic shall vest in the President and he or she shall hold the office of Commander in Chief.”

Section 48 (2) (a) of the Constitution provides that “The powers conferred on the President by subsection (1) of this section shall include the power to determine the operational use of the armed forces.”

It is submitted that the President’s power to determine the operational use of the armed forces can be used to deploy the armed forces for operations related to the fight against Covid-19. There is, therefore, no need to rely on the SoPE for such a purpose.

We now deal with the protection of government from lawsuits, for instance, lawsuits by entities seeking damages against government for its failure to perform its contractual obligations.

Ordinarily, in the law of contract, government would be protected by vis majure clauses. A vis majure clause avails a defence to a party to a contract in the event of such an overwhelming, unanticipated, and unpreventable event as Covid-19. In that case, a party may be exempted from performing its obligations under a contract.

But it goes without saying that some of the contracts government has with other parties have no vis majure clause.   Also, the Public Health Act does not avail a defence of vis majure to government. Therefore, government stands the risk of facing lawsuits, e.g. by companies that incur loss of business as a result of the Covid-19 lockdown.

Through a SoPE, however, government can achieve immunity against such lawsuits. There is, therefore, need to rely on the SoPE for such a purpose. It has been argued that the Public Health Act, Cap.63:01(Cap.63:01) is enough instrument to fight Covid-19. Section 23 (1) of Cap.63:01 provides that “The Director may, by Order published in the Gazette, declare that a public health emergency exists if- (a) the Director is satisfied that the situation so dictates it; and (b) it is not practicable for a declaration of a state of emergency or disaster to be made under the Emergency Powers Act (Cap. 22:04).”

In terms of this section, the Director can only declare that a public health emergency exists not only if he is satisfied that it exists but also if it is not practicable for the declaration to be made by the President. Therefore, the power is not truly of the Director, it is of the President.

Section 23 (2) of Cap.63:01 provides that “A public health emergency declaration made under subsection (1) shall specify- (a) the nature of the public health emergency; (b) the area to which the declaration relates; and (c) the period, not exceeding seven days, during which the declaration shall be in force.”

Section 24 (1) of Cap.63:01 provides that “A public health emergency declaration shall come into force on the date on which it is made and shall continue for the period specified in the declaration.”

Section 24 (2) of Cap.63:01 provides that “The Director may, by Order published in the Gazette, extend the period of a public health emergency declaration as may be necessary.”

In terms of sections 23(2); 24(1) and 24(2) supra, a public health emergency declaration made by the Director is far limited in duration than that made by the President subject to Parliament’s approval. Section 26 (1) of Cap.63:01 provides that “The Director may, in writing, authorize persons or a class of persons to assist him or her in carrying out any direction under this Act.”

Section 26 (2) of Cap.63:01 provides that “A person authorized under subsection (1), or a police officer, in assisting the Director to carry out any direction under this Act, may….”

As stated earlier, the power to deploy the armed forces is a preserve of the President as Commander in Chief in terms of section 48 of the Constitution. This power far outweighs the Director’s power in terms of section 26(2) above.

Therefore, though Cap.63:01 provides powers relating to compensation; public health enquiries; investigation and entry, inspection and seizure in terms of sections 27; 29; 30 and 31 respectively, its powers are far less than those a President has under a SoPE.

Going back to Honourable Dr. Dow’s framework, the next concern should be whether the SoPE seeks to suspend the Constitution?

If it does, it would be problematic in that the President would be able to trample on people’s rights and freedoms. Not only that. The Legislature and the Judiciary, which serve as checks and balances in relation to the Executive, would be suspended.

Nobody has suggested that this SoPE seeks to suspend the Constitution. All it will do, as do all States of Public Emergency, will be to limit people’s rights. It is submitted that if such limitation is reasonable and justifiable and is rationally connected to the purpose it seeks to achieve, then it would be constitutionally permissible.

After all, the Constitution itself permits limitation of human rights and freedoms. Section 16(1) provides that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 or 15 of this Constitution to the extent that the law authorizes the taking during any period when Botswana is at war or any period when a declaration under section 17 of this Constitution is in force, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period.”

Should there be any measures taken by the President that are not reasonably justifiable for the purpose of dealing with Covid-19, the courts, which stand guard over our Constitution, will be available for aggrieved parties.

The mandate of the courts is, however, limited by section 3(2) (g) of the Emergency Powers Act, Cap.22:04 (Cap.22:04) which provides that the regulations which the President is empowered to make during a SoPE may provide for the “apprehension, trial and punishment to persons offending against the regulations.”

Solace is, however, found in the proviso to section 3(2) (g) of Cap.22:04 which provides that nothing in this paragraph shall authorize the making of provision for the trial of persons by military courts.

Should there be any measures taken by the President that are not reasonably justifiable for the purpose of dealing with Covid-19, Parliament can revoke the SoPE in terms of Section 17(4) of the Constitution.

Concern has been raised, however, that during the SoPE Parliament may be unable to meet for such a purpose. I am unaware of any law which proscribes Parliament from meeting during a SoPE.

However, because our Parliament is not institutionally independent from the Office of the President (OP), OP may frustrate Parliament’s efforts to meet if the President does not want it to. But because the courts will be operational during the SoPE, it is submitted that Parliament can approach the courts for recourse.

Some have argued that Parliament cannot act in any manner, including approaching the courts, or telling the President anything before the SoPE lapses because it dies the moment it endorses the SoPE. This cannot be correct. Read literally, section 17(4) of the Constitution supra clearly shows that Parliament does not die during the SoPE for if it were so, it would not have the power to revoke the SoPE.

Honourable Dr. Dow has suggested that during the SoPE the President is enjoined to convene Parliament to approve the regulations he may make. This is not correct. In terms of section 3(1) of Cap.22:04, the President does not need Parliament’s approval to make regulations during the SoPE. He makes the regulations acting alone.

It ought to be stated that such regulations may have far reaching implications since, in terms of 3(1) of Cap.22:04, they may provide for the detention and restriction of movement; authorize the taking of possession or control of property or undertaking; and the entering and search of any premises.

Thankfully, the President does not have the power to amend the Constitution during a SoPE. He can, therefore, not amend the Constitution to abolish Parliament and the courts, for instance.

It is, however, disconcerting that the President can, in terms of section 3(2) (d) of Cap.22:04, “make regulations that provide for amending any enactment, for suspending the operation of any enactment and for applying any enactment with or without modification.”

Going back to Honourable Dr. Dow’s framework, the last concern should be whether the period for the SoPE is reasonable and motivated by proper motive?

With respect to this, I shall be very brief for this is dependent on scientific evidence available to government to which I am not privy. The difficulty with this is that the most sacred of human rights, i.e. the right to life, is at stake as a result of Covid-19. No other right takes precedence over this right. In fact, no right can be without the right to life.

However, whatever scientific evidence there is should be balanced with the effect that the SoPE will have on the socio-economic wellbeing of the people. It is needless to say that the SoPE will result in closure of companies, loss of jobs and loss of means of production and sustenance, resulting in unbearable suffering for our people. This, the President should consider judiciously.

Some BDP Members of Parliament (MPs) have suggested that the six-month SoPE does not necessarily translate to a six-month lockdown. For what it is worth, I discuss this matter in the next article.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or anmorima@gmail.com

Continue Reading

Columns

The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

Continue Reading

Columns

A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

Continue Reading

Columns

Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

This content is locked

Login To Unlock The Content!

Continue Reading
Do NOT follow this link or you will be banned from the site!