Of COVID-19

As explained earlier, a derogation provides for an important process of oversight and international scrutiny, requiring the State to give clear and specific reasons about the necessity of its derogation.

Oversight on national disaster regulations

It is important to ensure that there is oversight on all national disaster laws and regulations particularly because they tend to limit a number of fundamental rights. Like many emergency regulations, most of the Covid-19 regulations were processed in a rush and on close scrutiny may be found to be irregular. Oversight is crucial even if it does not happen immediately, mainly to ensure that unnecessary, disproportionate and abusive measures can be brought to an end. National human rights institutions, parliament, civil society and other stakeholders should, therefore, ensure that such oversight does take place.

National disaster laws should include procedural protections in the laws themselves to bring the measures to an end after a specific period of time, or at least some process for review should be triggered. This is an important step to ensure that these powers do not become “normalised” into the legal system and that any justification for continuing the exceptional powers is carefully scrutinised.

The following guidelines can be used to ensure that national disaster laws comply with human rights.

Have the laws and policies or regulations been published?

The respective states must ensure that the laws and regulations are publicly and easily accessible to the citizens of the respective countries, including ways to challenge them if there is a need to do so.

Are there continued mechanisms for oversight of the regulations or laws or powers that have been created? Are the oversight mechanisms adequate?

The respective states must ensure that they put in place effective mechanisms of oversight of the laws and regulations created as a result of any national disaster.

Do they permit for civil society and stakeholder engagement?

The laws in question should further permit for scrutiny by independent parties and engagement by all stakeholders to ensure transparency.

If there are no oversight mechanisms, why have they not been provided?

The respective states should ensure that they provide sound reasons for lack of any oversight mechanisms when they don’t exist.

Is there a time-limit to the laws in question? Is there a provision in the law itself that brings it to an end automatically on a certain date?

National disaster laws and regulations cannot be in place indefinitely, they must provide for a mechanism on how they will come to an end or provide a date upon which they will end. There is nothing however that stops the respective states from renewing the laws upon expiry of such a date.

Are the emergency laws and policies open to judicial scrutiny? Is access to courts being provided for continuingly?

The citizens of the respective countries must be able to challenge the lawfulness of the respective laws through independent channels such as the judiciary. The state must therefore ensure that such avenues exist, if they don’t already exist by operation of law, the state must take measures to ensure they exist.

Is there provision for interim review or parliamentary oversight at a reasonable point in the near future?

It is also important to ensure that there is a provision for review of these laws by independent bodies such as parliament in future.

Is there a provision to remove the law by agreement when the emergency is over?

It may also be important to ensure that there is a provision that provides for the law to cease to exist once the national disaster is over.

It is therefore incumbent upon members of parliament, and their advisors such as Parliamentary Clerks to always ensure the observance of the following principles: parliamentary oversight and scrutiny, democratic accountability, transparency, legitimacy at all stages in the legislative process, observance of the Rule of Law, evidence-based law-making, the principles of rational law-making, scientific literacy of law-makers, proper separation of powers, and respect for human rights and the constitutional order. It is incumbent upon legislatures to ensure that these principles remain true in the time of any other public emergency. Covid -19 like all other national disaster often do, has profoundly challenged the interactions between the legislative and the executive branches of government. It is true that while executives have assumed a predominant role, parliaments are being increasingly marginalised in some countries.

Fortunately in a number of our stable democracies parliaments have followed a realistic and incremental approach to ensure continuity of executive oversight, prioritizing the mechanisms that they deemed to be strategic and also feasible in terms of logistical arrangements.

Constitutional scholars have observed that national disasters such as Covid-19 often poses challenging dilemmas for legislative and judicial oversight, particularly in the era of executive aggrandisement, democratic decay and abusive populist constitutionalism.

It is generally agreed that even in situations of acute national emergency courts must remain functional to guard against any possible abuse. The deliberative and scrutiny functions of the legislature and the dispute-resolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness and legitimacy of emergency measures.

Constitutional scholars have also observed that governing in a period of national disasters has often led the executive to assume the role of a law-maker, in terms of which the executive exercises broad emergency powers, while legislatures (and their deliberative and scrutiny functions) have been marginalized. Other scholars have also highlighted another problematic relationship during public emergency situations: that of the legislature and elected politicians vis-à-vis medical-scientific experts.

They argue that extensive legislative and executive decision-making authority has been delegated to medical-scientific experts, whose role has metamorphosed from decision-making input into decision-maker.

It has been proven that slowing down or stopping the spread of COVID-19 requires measures that have a profound impact on the lives of citizens, the economy and society as a whole. These measures require more and not less parliamentary scrutiny. In times of crisis, parliaments have a duty to ensure that all measures taken result in enhanced protection and support of every person – especially the most vulnerable.

Dr. Tedros, World Health Organization (WHO) Director General has in the past spoken about legislative measures that parliaments can take to tackle the Covid – 19 pandemic. He is reported to have recently said, whilst addressing a meeting of global parliamentarians that:

“As a former parliamentarian myself, I know the critical role parliaments can play in enhancing resilience against health emergencies like COVID-19. Parliaments can establish legislative measures to govern, enable and support risk management measures,”

Dr. Tedros also observed that: “The pandemic has also highlighted the importance of implementing the International Health Regulations and the Sendai Framework for Disaster Risk Reduction.”

The Sendai Framework for Disaster Risk Reduction 2015 -2030 aims to achieve the substantial reduction of risk and losses in lives and livelihoods and health in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries over the next 15 years. It outlines seven clear targets and four priorities for action to prevent new and reduce existing disaster risks.

Dr. Mike Ryan, Executive Director, WHO Emergencies Programme, is on record for saying people often ask him what the most important things in emergency management are and he usually answers three things...“governance, governance, governance.”

Experience has taught that in public emergencies the rule of law matters. Human rights matters. The most important thing in responding to emergencies is governance and leadership, trust between the leadership and the people leads to a solid social contract that allows citizens to accept interventions that are not comfortable. Parliamentary Clerks are part of the broad leadership of the legislative branch.

The Covid -19 pandemic has shown that only an effective and efficient leadership can ensure sufficient public health workforce and adequate health system capacity to treat, test and trace. The most abiding lesson being that communities must be fully engaged and empowered to know what they can do to protect themselves.

Conclusion

In conclusion it is important to highlight the obvious: all the countries in the SADC region must follow their constitutions and other laws, including international rule of law and human rights standards when dealing with public emergencies.

It is normal to curtail fundamental human rights and freedoms while fighting existential threats, but care should be taken by governments not to overstep and excessively impede rights and freedoms in response to public emergencies. Declaration of permanent and or unduly long state of emergencies must be avoided, as that could lead to the removal of checks and balances and undermine the rule of law.