The impact of the COVID-19 crisis on constitutionalism and the rule of law
African governments have for the most part set up ad hoc institutional bodies to manage the impact of the pandemic
THE APRM report has compiled an interesting overview of the COVID-19 situation with regard to constitutionalism and the rule of law. AU member states have either deployed existing legal and institutional mechanisms or established new ones to respond to the pandemic.
The mechanisms thus introduced focus on i) legal and institutional measures; ii) disease prevention and containment measures, iii) social and humanitarian measures; and iv) fiscal and monetary measures.
The report investigates the effectiveness of these measures, in terms of the following: ensuring desirable outcomes; impacting the enjoyment of human rights; ensuring equal treatment of citizens; and facilitating the accountability of government to the public.
According to the report, the legal and institutional mechanisms deployed by African states in the management of the COVID-19 crisis have included national scientific commissions, monitoring committees, emergency committees and inter-ministerial committees. Several countries have also developed preparedness and response plans.
Some countries, such as Malawi and South Africa, have laws (national legislation) on disaster preparedness and management, although it is not clear thus far whether or how they are deploying these laws to manage the COVID-19 pandemic.
For the most part, African states have established ad hoc legal and institutional mechanisms to respond to the pandemic. For example, Algeria has used its national scientific commission to manage the COVID-19 pandemic, while Mozambique has established an advisory technical and scientific committee.
Other countries such as Morocco, Nigeria, Togo and Tunisia have established strategic monitoring committees, crisis committees or co-ordination mechanisms.
Yet other countries such as Chad, the Republic of Sudan, Lesotho and Uganda have developed preparedness and response plans. Some countries have also established ministerial or inter-ministerial committees to co-ordinate their responses to the pandemic.
In Uganda’s case, the ministry of health is spearheading the implementation of the country’s Preparedness and Response Plan while in Djibouti the ministry of health is enhancing its preparedness to deal with the pandemic by building its capacity for surveillance, testing and quarantines. It is also building the capacity of health workers.
The Republic of Sudan has developed a Multihazard Emergency Health Preparedness Plan, which is co-ordinated by a high-level emergency committee. Chad has established a Health Monitoring and Safety Unit, which the presidency co-ordinates.
The rule of law and the role of public institutions in a country’s preparedness and resilience in the context of the COVID-19 crisi is pivotal.
The manner in which national public institutions have acted with effectiveness, transparency, sharing information and accountability in Africa reflects a stronger societal value inclination towards inclusiveness.
Although African
countries have been constantly criticized for being poorly governed, Africa’s governance responses to COVID-19 indicates, to a great extent, a much better degree of institutional preparedness than had been previously assumed.
This positive comparative difference between developed and developing countries notwithstanding, it is apparent that many member states lack the requisite legal and institutional mechanisms to handle crises of the magnitude of COVID-19.
In order to be effective, legal and institutional mechanisms need to be inclusive and consider the needs of all stakeholders, particularly the vulnerable members of society.
These mechanisms should also be accountable to the public for their decision-making, including reporting on the use of public resources and informing the public of their policies and actions.
Public participation and accountability are also critical as they help to build social trust, without which affected publics may not comply with measures instituted to manage the pandemic and its impact.
There is strong evidence that the one-size-fitsall model of quarantine/lockdown models may not be the foremost effective response to the pandemic.
Frameworks that enable a rapid and effective response to crises must be put in
place
The APRM report contains recommendations to member states around, among other things, on how to scale up COVID-19 testing, and maintain essential health services during the outbreak.
Recommendations for the African Union (AU):
1. AU must advise member states on modalities for conducting elections during the pandemic in a manner that ensures credible, free and fair elections during the pandemic. The principles obtained should also be integrated into the Guidelines for AU Electoral Observation and Monitoring Missions. The commission should support member states to establish electronic elections systems.
2. The AU should revise Agenda 2063 to emphasise disaster preparedness and management in its member states.
3. The AU should develop a continental framework on disaster preparedness and management, and encourage its member states to incorporate this framework in their national and local development frameworks.
4. The AU should encourage its member states to sign and ratify the African Risk Capacity (ARC) Treaty, which provides a framework for disaster early warning and contingency planning, and disaster insurance for participating states. Member states are also encouraged to invest
substantially into the ARC Insurer.
5. AU should develop guidelines for multinational enterprises to support responsible business conduct to ensure that a co-ordinated and structured platform for business and government and/or AU collaboration is put in place beyond COVID-19.
6. The AU should establish a Continental Solidarity Fund to assist member states when largescale disasters such as COVID-19 occur, and co-ordinate the management of such disasters. 7. The AU should assess the scientific, technological and institutional capacities of its member states, including their capacities for vaccine research and development, with a view to contributing to enhancing their ability to prepare for and manage disasters.
8. The AU should fast-track the adoption of a policy framework of mechanisms for “APRM Support to Member States in the Area of Credit Rating Agencies” currently awaiting final validation by the AU Special Technical Committee of Ministers of Finance, Monetary Affairs and Regional Integration; and it should call for a moratorium on rating downgrades of developing countries based on the COVID-19 outlook.
Recommendations for member states:
A) Immediate governance measures
1. Member states should establish multistakeholder national response governance bodies.
2. Member states should ensure that their COVID19 prevention and containment measures are implemented within a framework that respects the rule of law and the human rights of citizens.
B) Medium-term Governance Measures
1. Member states that do not have national disaster-related legislation and a relevant institutional mechanism should consider these measures for implementation as best practice. 2. Member states are encouraged to increase their investment in institutional capacity central to an effective governance response to COVID-19.
3. Public institutions and the private sector should accelerate south-south co-operation for knowledge sharing, technology transfer in healthcare, and epidemics research.
4. Member states should incorporate disaster planning in their national and local development planning frameworks. 5. Member states should decentralise responsibilities and capacities for disaster management and ensure co-ordination and co-operation between the local and national levels. 6. Member states should adopt a human rights approach to disaster preparedness and management and ensure their governments consider the potential consequences of their disaster policy decisions and actions for the enjoyment of human rights by all concerned. 7. Member states should establish mechanisms for ensuring that their governments are accountable for disaster decision-making, including in the use of public finances devoted to the emergencies that disasters create. 8. Member states should, as far as is possible, invest in developing the infrastructure and scientific, technological and institutional capacities to research and forecast hazards, vulnerabilities and disaster impacts, including developing capacities for vaccine research and development.
Recommendations for the APRM
1. Undertake research on state resilience and disasters to inform its methodology and processes.
2. Review APRM framework to integrate disaster preparedness and management, including revising its base questionnaire to address the governance of disasters.
3. Develop monitoring and evaluation tools for evaluating the attainment of good disaster governance.