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The case for a ‘State of Disaster’ as opposed to a ‘State of Public Emergency’

On 9th April 2020, Botswana’s National Assembly endorsed the State of Public Emergency (SoPE) which President Dr. Mokgweetsi Masisi, had declared effective midnight on 2nd April 2020 until further notice.

Since the endorsement of the SoPE, the question as to whether or not it was the best available option has refused to escape my mind. Of course, I have previously attempted to discuss the question in the article titled ‘Is a six months State of Public Emergency necessary to fight COVID-19?’, but I remain unsatisfied.

In this article, I discuss the question. I start by defining a SoPE and a State of Disaster (SoD).  I then give an exposition of how various countries have responded to COVID-19 legislatively. I conclude by making a case for a SoD under a Disaster Management Act as opposed to a SoPE.

A SoPE is the equivalent of a Justitium in Roman law where the Senate could put forward a final decree (senatus consultum ultimum) that was not subject to dispute. A SoPE is a state during which government is empowered to perform actions or impose policies that it would ordinarily not be permitted to undertake in an open and democratic society. For instance, derogation from certain human rights and freedoms is permissible.

It ought to be stated, however, that a SoPE and COVID-19 aside, section 16 of our Constitution permits derogation from fundamental rights and freedoms, provided that such derogation or limitation is reasonably justifiable in an open and democratic society.

A government can declare a SoPE during such events as natural disasters, civil unrest, armed conflict, health pandemics or other biosecurity risks. In the case of COVID-19, the most affected rights are the rights to freedom of assembly and association and freedom of movement in terms of sections 13 and 14 of the Constitution respectively.

The other rights which stand to be affected, though to a lesser extent, are protection from deprivation of property, freedom of conscience and freedom of expression in terms of sections 10, 11 and 12 of the Constitution respectively. Just like a SoPE, a State of Disaster (SoD) can be declared by the head of state in the event of such events as natural disasters, civil unrest, armed conflict, health pandemics or other biosecurity risks.

While both a SoPE and a SoD are usually declared by the head of state, they differ in that while a SoPE is usually declared in terms of the Constitution of a country, a SoD is usually declared in terms of ordinary legislation, for instance, a Disaster Management Act.

While, in most jurisdictions, after declaring a SoPE, a head of state drafts Emergency Powers Regulations (EPRs), which come into effect upon publication in the Government Gazette, for later endorsement by Parliament, a SoD often contains EPRs which would have been passed by Parliament when passing the Act or at a later date.

Therefore, in the case of a Disaster Management Act, the EPRs are always known by the people; they are not drafted by the head of state alone and do not come as a surprise. I now give a cursory exposition of how various countries have responded to COVID-19 legislatively.

Some countries, like Botswana, declared a SoPE, mainly in terms of their constitutions. Many Southeast Asian countries as well as such African countries as Egypt, Senegal and Ivory Coast did the same. In Europe, several countries also declared SoPEs though not in terms of their constitutions. They did so under Article 15 of the European Convention on Human Rights (ECHR). These include Armenia, Estonia, Georgia, Latvia, Moldova and Romania.

However, Italy and Spain did not invoke the ECHR mechanism, but declared SoPEs in terms of their constitutions. The United Kingdom did not declare a SoPE. It passed the Coronavirus Act,2020 which sought to streamline the existing powers under the Public Health (Control of Disease) Act 1984.

In South Africa, President Cyril Ramaphosa did not declare a SoPE. Rather, he declared a National State of Disaster in terms of the Disaster Management Act 2002 (‘the Act’). In terms of the Act, it is the Minister of Cooperative Governance & Traditional Affairs who, after consultation with relevant cabinet ministers, issues regulations.

In my view, compared to EPRs which are singularly ‘passed’ by a head of state, the EPRs contained in a Disaster Management Act passed by Parliament meet one of the principles of the Rule of Law. I now wish to make the case for a SoD as opposed to a SoPE. As stated above, both a SoD and a SoPE address a disaster. What, then, is the issue since they meet the same end?

In my view, there is an issue because, firstly, though both a SoD and a SoPE meet the same end, a SoPE is, in my view, more offensive to the doctrine of the Rule of Law. Secondly, though the courts remain operational during a SoPE, there may be little or no recourse by citizens in the event human right violations are visited upon them.

I start with the Rule of Law. There is general consensus that, from the classical and contemporary theories of the Rule of Law, including those by Albert Venn Dicey, John Locke, Montesquieu and Lord Bingham, there are about eight principles of the Rule of Law.

These can be summarised as (i) supremacy of law; (ii) equality before the law; accountability to the law; (iii) fairness in the application of the law; (iv) separation of powers; (v) participation in decision-making; (vi) legal certainty; (vii) avoidance of arbitrariness and (viii) procedural and legal transparency.

These are the principles I shall use in making the case for a SoD as opposed to a SoPE. I discuss them in turn. First, legal certainty. In my view, providing for a SoD through such an Act of Parliament as a Disaster Management Act results in legal certainty, satisfying one of the principles of the Rule of Law.

This, in my view, is not the case with a SoPE whose EPRs remain unknown until the President, acting alone, publishes them and they become law even before Parliament endorses them. Second, avoidance of arbitrariness. Such EPRs may, in my view, be arbitrary because they are made extemporary; there is no notice of them; and the President may figure them out as he goes along.

Third, participation in decision-making. As you are aware, our President is not obliged to involve anyone in declaring a SoPE and drafting the SoPE’s EPRs. Therefore, if we became unlucky and had a dictatorial President, he or she may rely on precedents from other jurisdictions and find no reason to meaningfully involve anyone in drafting EPRs. He or she may also only involve those he or she knows will tour the line.

I am alive to the fact that Parliament ultimately has the right to endorse or refuse to endorse the EPRs. But the reality is that the President normally has his or her way by influencing his or her party’s Parliamentary caucus whose decision is binding on all the ruling party’s Members of Parliament (MPs).

Also, in Botswana, we seldom have bi-partisan decisions and because the ruling Botswana Democratic Party (BDP) has a safe majority in Parliament, it often passes the laws it desires despite resistance from the Opposition. If the President acts alone, as he is entitled to, he or she denies others of participation in decision-making, something which is in violation of one of the principles of the doctrine of the Rule of Law.

Fourth, procedural and legal transparency. In my view, by acting alone, the President breaches yet another principle of the Rule of law, namely procedural and legal transparency in that no one but the President is involved in the declaration of the SoPE and the nature of the EPRs.

Fifth, separation of powers. It is my further submission that though it is provided for in the Constitution, the provision that the SoPE’s EPRs become law even before endorsement by Parliament violates yet another  principle of the doctrine of the Rule of Law, namely separation of powers.

This is because, by acting as such, the President, who is the head of the Executive, effectively assumes the role of law making, which, in every democracy, is the preserve of Parliament. You would be aware that though the EPRs are referred to as regulations, they are, for all intents and purposes, a law which has the same force and effect as an Act of Parliament.

I now turn to possible human right violations during a SoPE on the one hand and a SoD on the other. Granted, our courts’ jurisdiction is not ousted in relation to matters arising from the declaration of a SoPE and the EPRs.

But as per Motswaledi v Botswana Democratic Party and Others 2 2009 2 BLR 284 CA, the President cannot be held criminally liable for acts and/or omissions by him either in his or her official capacity or in his or her private capacity. Such immunity would apply even in SoPE related litigation.

The President can, however, be held liable in civil proceedings for acts and/or omissions by him in his or her private capacity. Also, as per Kamanakao I and Others v. The Attorney-General and Another 2001 (2) BLR 654 (HC), our courts may, as a matter of judicial policy, despite finding in favour of a citizen on a human rights violation matter, for instance, be reluctant to issue orders for the carrying out of works and other activities which would require the courts’ supervision.

For instance, while a suitable remedy would be for the court to declare as invalid and strike down a SoPE regulation which is inconsistent with the Constitution and to order government to pass a suitable one, the court may be reluctant to do so. The court may also be reluctant to act as such in deference to the doctrine of separation of powers.

Although the above judicial decisions would also apply to actions and/or omissions related to a SoD, for the latter the effect would be different because the government functionaries who are at the centre are cabinet ministers, not the President who is clothed with immunities.

Therefore, to the extent cabinet ministers who may perpetuate human right violations would not be protected by the immunities available to the President, citizens would be more likely to get recourse under a SoD than they would under a SoPE.

Also, in the event the President perpetuates human rights violations during a SoD, Parliament can easily prevail upon him or her by amending the Disaster Management Act, even through a Private Member’s Bill, although the President’s assent will be required to give effect to such an amendment.

I must admit that the effects of a SoPE and a SoD may be the same since both may entail a national lockdown and suspension of certain human rights and freedoms. That notwithstanding, I still hold that a SoD is better to the extent it derives its authority from an Act of Parliament passed by the peoples’ representatives, MPs, and not one person, the President, who effectively usurps Parliament’s powers and may act ultra vires his powers.

Though the Constitution, from which a SoPE derives its mandate, is also passed by the peoples’ representatives, MPs cannot easily amend it or pass regulations under it as they may do with an Act of Parliament. Also, SoPEs usually make people uneasy because they were used to terrorise people, especially by colonial governments.

I recommend that government should consider passing a Disaster Management Act so that during such disasters as COVID-19 it uses the Act together with such legislation as the Public Health Act, Cap. 63:01.

According to Sunday Standard’s online edition of 18th November 2013, following a study entitled ‘International Disaster Response Law (IDRL) in Botswana’, Elizabeth Macharia-Mokobi, reported that Botswana had not acceded to or domesticated most major treaties in Disaster Risk Management.

She also reported that Botswana had no National Disaster Risk Management legislation; had no legislation governing the facilitation and regulation of international disaster assistance and had no law that manages such international disaster assistance as funds, food and qualified human resources.

Had government acted on the recommendations of this report, we probably would have enacted a Disaster Management Act and would not have needed to declare a SoPE to fight COVID-19, but a SoD instead. Perhaps, we would have been better prepared for such an international disaster as COVID-19.

*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

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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.

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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.

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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.

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