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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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Export Processing Zones: How to Get SEZA to Sizzle

23rd September 2020
Export Processing Zone (EPZ) factory in Kenya

In 2005, the Business & Economic Advisory Council (BEAC) pitched the idea of the establishment of Special Economic Zones (SEZs) to the Mogae Administration.

It took five years before the SEZ policy was formulated, another five years before the relevant law was enacted, and a full three years before the Special Economic Zones Authority (SEZA) became operational.

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Egypt Bagged Again

23rd September 2020
Samson

… courtesy of infiltration stratagem by Jehovah-Enlil’s clan

With the passing of Joshua’s generation, General Atiku, the promised peace and prosperity of a land flowing with milk and honey disappeared, giving way to chaos and confusion.

Maybe Joshua himself was to blame for this shambolic state of affairs. He had failed to mentor a successor in the manner Moses had mentored him. He had left the nation without a central government or a human head of state but as a confederacy of twelve independent tribes without any unifying force except their Anunnaki gods.

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‘RO, ‘RO ‘RO YOUR ‘BOT

23rd September 2020

If I say the word ‘robot’ to you,  I can guess what would immediately spring to mind –  a cute little Android or animal-like creature with human or pet animal characteristics and a ‘heart’, that is to say to say a battery, of gold, the sort we’ve all seen in various movies and  tv shows.  Think R2D2 or 3CPO in Star Wars, Wall-E in the movie of the same name,  Sonny in I Robot, loveable rogue Bender in Futurama,  Johnny 5 in Short Circuit…

Of course there are the evil ones too, the sort that want to rise up and eliminate us  inferior humans – Roy Batty in Blade Runner, Schwarzenegger’s T-800 in The Terminator,  Box in Logan’s Run,  Police robots in Elysium and  Otomo in Robocop.

And that’s to name but a few.  As a general rule of thumb, the closer the robot is to human form, the more dangerous it is and of course the ultimate threat in any Sci-Fi movie is that the robots will turn the tables and become the masters, not the mechanical slaves.  And whilst we are in reality a long way from robotic domination, there are an increasing number of examples of  robotics in the workplace.

ROBOT BLOODHOUNDS Sometimes by the time that one of us smells something the damage has already begun – the smell of burning rubber or even worse, the smell of deadly gas. Thank goodness for a robot capable of quickly detecting and analyzing a smell from our very own footprint.

A*Library Bot The A*Star (Singapore) developed library bot which when books are equipped with RFID location chips, can scan shelves quickly seeking out-of-place titles.  It manoeuvres with ease around corners, enhances the sorting and searching of books, and can self-navigate the library facility during non-open hours.

DRUG-COMPOUNDING ROBOT Automated medicine distribution system, connected to the hospital prescription system. It’s goal? To manipulate a large variety of objects (i.e.: drug vials, syringes, and IV bags) normally used in the manual process of drugs compounding to facilitate stronger standardisation, create higher levels of patient safety, and lower the risk of hospital staff exposed to toxic substances.

AUTOMOTIVE INDUSTRY ROBOTS Applications include screw-driving, assembling, painting, trimming/cutting, pouring hazardous substances, labelling, welding, handling, quality control applications as well as tasks that require extreme precision,

AGRICULTURAL ROBOTS Ecrobotix, a Swiss technology firm has a solar-controlled ‘bot that not only can identify weeds but thereafter can treat them. Naio Technologies based in southwestern France has developed a robot with the ability to weed, hoe, and assist during harvesting. Energid Technologies has developed a citrus picking system that retrieves one piece of fruit every 2-3 seconds and Spain-based Agrobot has taken the treachery out of strawberry picking. Meanwhile, Blue River Technology has developed the LettuceBot2 that attaches itself to a tractor to thin out lettuce fields as well as prevent herbicide-resistant weeds. And that’s only scratching the finely-tilled soil.

INDUSTRIAL FLOOR SCRUBBERS The Global Automatic Floor Scrubber Machine boasts a 1.6HP motor that offers 113″ water lift, 180 RPM and a coverage rate of 17,000 sq. ft. per hour

These examples all come from the aptly-named site www.willrobotstakemyjob.com    because while these functions are labour-saving and ripe for automation, the increasing use of artificial intelligence in the workplace will undoubtedly lead to increasing reliance on machines and a resulting swathe of human redundancies in a broad spectrum of industries and services.

This process has been greatly boosted by the global pandemic due to a combination of a workforce on furlough, whether by decree or by choice, and the obvious advantages of using virus-free machines – I don’t think computer viruses count!  For example, it was suggested recently that their use might have a beneficial effect in care homes for the elderly, solving short staffing issues and cheering up the old folks with the novelty of having their tea, coffee and medicines delivered by glorified model cars.  It’s a theory, at any rate.

Already, customers at the South-Korean  fast-food chain No Brand Burger can avoid any interaction with a human server during the pandemic.  The chain is using robots to take orders, prepare food and bring meals out to diners.  Customers order and pay via touchscreen, then their request is sent to the kitchen where a cooking machine heats up the buns and patties. When it’s ready, a robot ‘waiter’ brings out their takeout bag.   

‘This is the first time I’ve actually seen such robots, so they are really amazing and fun,’ Shin Hyun Soo, an office worker at No Brand in Seoul for the first time, told the AP. 

Human workers add toppings to the burgers and wrap them up in takeout bags before passing them over to yellow-and-black serving robots, which have been compared to Minions. 

Also in Korea, the Italian restaurant chain Mad for Garlic is using serving robots even for sit-down customers. Using 3D space mapping and other technology, the electronic ‘waiter,’ known as Aglio Kim, navigates between tables with up to five orders.  Mad for Garlic manager Lee Young-ho said kids especially like the robots, which can carry up to 66lbs in their trays.

These catering robots look nothing like their human counterparts – in fact they are nothing more than glorified food trolleys so using our thumb rule from the movies, mankind is safe from imminent takeover but clearly  Korean hospitality sector workers’ jobs are not.

And right there is the dichotomy – replacement by stealth.  Remote-controlled robotic waiters and waitresses don’t need to be paid, they don’t go on strike and they don’t spread disease so it’s a sure bet their army is already on the march.

But there may be more redundancies on the way as well.  Have you noticed how AI designers have an inability to use words of more than one syllable?  So ‘robot’ has become ‘bot’ and ‘android’ simply ‘droid?  Well, guys, if you continue to build machines ultimately smarter than yourselves you ‘rons  may find yourself surplus to requirements too – that’s ‘moron’ to us polysyllabic humans”!

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