This book explores the resilience of constitutional government in the wake of the COVID-19 pandemic, connecting and comparing perspectives from ten countries in sub-Saharan Africa to global trends.
In emergency situations, such as the COVID-19 pandemic, a state has the right and duty under both international law and domestic constitutional law to take appropriate steps to protect the health and security of its population. Emergency regimes may allow for the suspension or limitation of normal constitutional government and even human rights. Those measures are not a license for authoritarian rule, but they must conform to legal standards of necessity, reasonableness, and proportionality that limit state action in ways appropriate to the maintenance of the rule of law in the context of a public health emergency.
Bringing together established and emerging African scholars from ten countries, this book looks at the impact government emergency responses to the pandemic have on the functions of the executive, the legislature, and the judiciary, as well as the protection of human rights. It also considers whether and to what extent government emergency responses were consistent with international human rights law, in particular with the standards of legality, necessity, proportionality, and non-discrimination in the Siracusa Principles.
Author(s): Ebenezer Durojaye, Derek M. Powell
Publisher: Palgrave Macmillan
Year: 2022
Language: English
Pages: 410
City: Cham
Preface
Acknowledgements
Contents
Notes on Contributors
List of Figures
Chapter 1: Constitutional Resilience and the Covid-19 Pandemic
1 Constitutional Government in the First Year of the Pandemic (2020–2021)?
1.1 The First Year of the Pandemic (March 2020–March 2021)
1.2 The Legal Framework Governing the International Public Health Crisis
1.3 The Foundations of Constitutional Government
1.4 The Objectives and Approach of the Book
1.5 Comparative Constitutional Law in an International Public Health Emergency
1.6 Overview of the Sections in This Chapter
2 The Legal Framework for a Public Health Emergency
2.1 Declaration of an International Public Health Emergency
2.2 Declaration of a Public Emergency Under International Law
2.3 The Siracusa Principles
2.4 Trends in National Law and Practice
2.5 Perspectives from Countries in Sub-Saharan Africa
3 Executive Government
3.1 General Increase and Transformation of Executive Power
3.2 Perspectives from Sub-Saharan Africa
4 The Legislature
4.1 Limitation and Adaption of the Legislative Function
4.2 Perspectives from Countries in Sub-Saharan Africa
5 The Judiciary
5.1 Judicial Review
5.2 Access to Justice
5.3 Perspectives from Sub-Saharan Countries
6 Public Health Measures and the Limitation of Fundamental Rights
6.1 WHO Guidance on Public Health Measures and Human Rights
6.2 Guidance on the Limitation of International Human Rights
6.3 Public Health Measures and the Limitation of Human Rights
6.4 Perspectives from Countries in Sub-Saharan Africa
7 Overview of Chapters
Bibliography
Chapter 2: International Human Rights Norms and Standards on Derogation and Limitation of Rights During a Public Emergency
1 Introduction
2 The History of Emergency Powers and Derogation Clauses
3 The Siracusa Principles and General Comment Nos. 27 and 34
3.1 The Siracusa Principles
3.2 General Comment No. 34 on Article 19
3.3 General Comment No. 27 on Article 12
4 Limitation of Rights Under the Inter-American Human Rights System
4.1 The American Convention of Human Rights
4.2 The Inter-American Commission on Human Rights
5 Limitation of Rights Under the European Convention
6 Limitation of Rights Under the African Human Rights System
7 Conclusion
Bibliography
Chapter 3: Addressing Covid-19: A Test of Kenya’s Constitutional and Democratic Resilience
1 Introduction: An Overview of the Pandemic in Kenya
2 The Constitution and Emergency Powers
3 Governmental Measures in Response to the Pandemic
4 The Impact on Rights
4.1 Impact on Socio-Economic Rights
4.1.1 The Right to the Highest Attainable Standards of Health
4.1.2 The Impact on Education
4.1.3 The Right to Social Security and the Protection of Vulnerable Populations
4.2 Impact on Civil and Political Rights
4.2.1 Curfew Orders
4.2.2 Unprocedural Quarantine Processing
4.2.3 Excessive Use of Force by Police
4.2.4 Media Freedom and the Right to Information
5 The Impact on the Legislature
6 The Impact on the Judiciary
7 Vaccines and the Rule of Law
8 Analysis of Constitutional Resilience or Fragility
Bibliography
Chapter 4: Covid-19 and Zambia’s Constitutional Dilemma
1 Introduction: An Overview of the Pandemic in Zambia
2 The Constitution and Emergency Powers
3 Governmental Measures in Response to the Pandemic
3.1 Measures Introduced
3.2 Legal Basis for Measures
4 The Role of Parliament
5 Impact on Human Rights
5.1 Right to Liberty
5.2 Freedom from Inhuman Treatment
5.3 Right to Privacy
5.4 Freedom of Expression
5.5 Freedom of Assembly and Non-discrimination
5.6 Freedom of Movement
6 The Role of the Courts
7 Analysis of Constitutional Resilience or Fragility
7.1 Constitutional and Law-Based Executive Response
7.2 Parliamentary and Judicial Oversight
7.3 Economic, Social, and Cultural Rights
Bibliography
Chapter 5: Constitutional Resilience and Limitation of Rights Under Covid-19 Response in South Sudan
1 Introduction: Overview of the Covid-19 Pandemic in South Sudan
2 Legal and Constitutional Frameworks on Emergency Powers
3 Governmental Measures in Response to Covid-19
3.1 Implications for Fundamental Rights and Freedoms
3.1.1 The Measures’ Impact on Civil and Political Rights
3.1.2 The Measures’ Impact on Socio-economic Rights
3.2 Safeguards Against Arbitrary Derogation and Abuse
3.2.1 Restriction on Derogation of Rights During State of Emergency
3.2.2 Institutional Protection and Oversight Functions
4 Analysis of Constitutional Resilience or Fragility
5 Conclusion
Bibliography
Chapter 6: The Covid-19 Pandemic and Constitutional Resilience in The Gambia
1 Introduction: Overview of the Pandemic in The Gambia
2 The 1997 Constitution and Emergency Powers
3 Governmental Response to Covid-19
4 The Role of the National Assembly
5 The Role of the Courts During the Pandemic
6 Impact of the Pandemic on Human Rights
6.1 Liberty and Freedom of Movement
6.2 Freedom of Assembly
6.3 Freedom of Religion
6.4 Socio-economic Rights
7 Analysis of Constitutional Resilience or Fragility
Bibliography
Chapter 7: Walking a Tightrope: Balancing Human Rights and Public Health Measures During the Covid-19 Pandemic in Nigeria
1 Introduction: An Overview of the Pandemic in Nigeria
2 The Constitution and Emergency Powers
3 Governmental Measures in Response to the Pandemic
3.1 Scientific Data Informing the Government’s Response
4 The Role of Parliament
5 Impact on Human Rights
6 The Role of the Courts
7 Analysis of Constitutional Resilience or Fragility
Bibliography
Chapter 8: The Constitutionality of Legal Measures Taken by the Government of Mauritius in the Context of the Covid-19 Pandemic
1 Introduction: An Overview of the Pandemic in Mauritius
2 The Constitution of Mauritius and Emergency Powers
3 Governmental Response to the Pandemic
3.1 Lockdown and Curfews
3.2 Issues Pertaining to Vaccination
3.3 Economic Measures in Relation to Employment
4 The Role of Parliament
5 Impact on Rights
6 The Role of Courts
7 Analysis of Constitutional Resilience or Fragility
Bibliography
Chapter 9: Constitutional and Human Rights Issues Arising from Covid-19: Uganda’s Youth in Context
1 Introduction: An Overview of the Pandemic in Uganda
1.1 A Contextualisation of the Youth
2 Constitutional and Emergency Powers
3 The Governmental Response to Covid-19
3.1 The Use of Data and Technology
4 The Role of Parliament
5 The Impact on Fundamental Rights
5.1 Impact on Civil and Political Rights
5.2 Impact on Socio-economic Rights
6 The Role of Courts
7 Analysis of Constitutional Resilience or Fragility
7.1 Limitation of Rights
7.2 Right to Food
7.3 Right to a Fair Trial
7.4 Multilateral and Civil Society Response
Bibliography
Chapter 10: The (Il)Legality of Ghana’s Covid-19 Emergency Response: A Commentary
1 Introduction: An Overview of the Pandemic in Ghana
2 The Constitution and Emergency Powers
2.1 The Constitution
2.2 The Emergency Powers Act
2.3 The Public Health Act
3 Government Measures in Response to the Pandemic
4 The Role of Parliament
5 Impact on Rights
5.1 Permanent Exercise of State of Emergency Powers
5.2 Unlimited Grounds for Imposition of Lockdown
5.3 Contact Tracing and Surveillance
5.4 Unchecked Powers of the President
5.5 The Retroactive Effect of the IRA
6 The Role of Courts
7 Analysis of Constitutional Resilience or Fragility
8 Conclusion
Bibliography
Chapter 11: Constitutional and Human Rights Issues Arising from Covid-19 in South Africa
1 Introduction: Overview of the Pandemic in South Africa
2 The Constitution and Emergency Powers
2.1 State of Emergency and Disaster Management
2.2 Bill of Rights
2.3 Limitation Clause
3 Governmental Measures in Response to the Pandemic
3.1 Declaration of a National Disaster
3.2 National Command Council and Advisory Committee
3.3 Emergence Regulations and Directives
3.4 Public Health Measures
3.5 Track-and-Trace Technology
4 The Role of Parliament
4.1 Impact on Parliament
4.2 Role in Authorising Emergency
4.3 Oversight
5 Impact on Rights
6 The Role of Courts
6.1 Rationality
6.2 Position of the National Command Council
6.3 Procedural Rationality
6.4 Proportionality
7 Analysis of Constitutional Resilience or Fragility
7.1 Increase in Gender-Based Violence
7.2 Heightened Challenges in Informal Settlements
7.3 Exacerbation of the Housing Crisis
7.4 Limited Access to Healthcare Services
7.5 Police and Military Brutality
7.6 Corruption
7.7 Effects on the Business Sector
7.8 Implementation of Government Palliatives
7.9 Recent Developments: Vaccinations
8 Conclusion
Bibliography
Chapter 12: Zimbabwe’s Response to Covid-19 and Its Socio-economic Impact
1 Introduction: An Overview of the Pandemic in Zimbabwe
2 Constitutional Framework, Emergency Powers and System of Government
3 Governmental Measures in Response to the Pandemic
3.1 The Constitutionality of Zimbabwe’s Socio-Economic Measures
3.2 The Role of Parliament: Response, Functioning and Oversight
4 The Impact on Fundamental Human Rights and Freedoms
4.1 Long-Term Implications for Constitutional Government
4.2 The Role and Response of the Courts
5 Analysis of Constitutional Resilience or Fragility
6 Conclusion
Bibliography
Index
