Uganda’s de facto state of emergency to address the Covid-19 pandemic

>> Read more about our monitoring effort and access other articles << Authors : Michael Musiime, Elisa Novic, Nathalie Vandevelde* In light of Uganda’s recent experience with dealing with the Ebola Virus Disease, the country has very quickly developed a comprehensive plan to contain the spread of Covid-19. Preventive measures were taken as of March 18^th, before any cases were recorded in the country.^[1] By the time Uganda had recorded its first case on March 22^nd, health workers were already on high alert and the promotion of preventive behaviours, such as regular hand washing, was already largely implemented. This blogpost covers the period from March 18th to early June 2020. During this time, there has been a steady rise in the number of Covid-19 cases with the total number of recorded cases now standing at close to 700. A presidential and oral response to the pandemic crisis Uganda has addressed the pandemic crisis through a de facto state of emergency. The President chose not to trigger art. 110 of the Constitution, which confers him the possibility to declare a state of emergency after Parliamentary approval.^[2] Instead, he adopted a series of declarations, the legal status of which is quite unclear. The first of the kind was made on March 18^th 2020, establishing a strict lockdown and curfew through 34 measures (e.g. closing of schools, bars and churches; prohibition of public gatherings; 14 day-quarantine upon entering Uganda; prohibition of entry into Uganda). The Minister of Health later formalized them into a number of Rules and Orders,^[3] as foreseen in Section 29 of the Public Health Act CAP. 281, which provides the Minister of Health with wide powers to manage and prevent the propagation of pandemics. However, most of these measures have been implemented on the sole basis of the President’s directives, even before being enacted in the Health Ministry’s Rules and Orders. For instance, the March 18^th President’s directive only became a ministerial rule, published in the official gazette, on March 24^th. Yet, the President’s public announcements are not legally binding.^[4] The internet website of the Presidency does offer transcriptions of President Museveni’s directives, but Ugandans still have to rely on the media to develop an awareness of the restrictions to their rights and freedoms during the crisis. These reports are usually in English; no official translation in local languages is available. This way of ruling constitutes a clear breach of international standards. The African Charter of Human and Peoples’ Rights provides that limitation to human rights – such as freedom of movement and freedom of assembly (Articles 11 and 12) – must be provided for by law, for ‘the protection of national security, law and order, public health or morality’.^[5] A neutralized balance of powers The stakes are not just theoretical. The decision not to declare a state of emergency has deprived the Parliament of its constitutional mandate to monitor or balance the Executive powers’ self-assigned ‘exceptional powers’ over the extent of restrictions to rights and freedoms over the past couple of months.^[6] The Parliament’s own actions have not avoided criticism either. It decided at an early stage to grant 20 million shillings (around 4800 EUR) to each Member of Parliament (MPs), on their private bank account, to tackle the pandemic crisis in their constituency. The High Court eventually ordered the MPs to return the funds to either the Parliamentary Commission account, the National Covid-19 taskforce or the District Covid-19 taskforces.^[7] Such a judgment remains an exception, as Court hearings and appearances were suspended as of March 20^th, except for urgent matters or bail applications.^[8] Only minimal judicial services thus remained in operation, primarily to deal with the filing of emergency actions related to the administration of justice. For instance, in front of the High Court, a lawyer contested the Ministry of Health’s regulation omitting legal aid services from a list of “essential services” as a breach of fair trial standards. While the case was processing, the President announced new guidelines, allowing “a quota of 30 lawyers at any one time to provide urgent legal services”. The High Court eventually requested that the Health Ministry follow up on implementing the directive through standard operational procedures.^[9] The concentration of powers in the hands of the Executive with little to no Judicial or Parliamentary oversight, combined with the lack of clarity of the status and content of measures adopted to contain the Covid-19 pandemic, have constituted fertile ground for abuses in the implementation of such measures. These include excessive use of force by security forces, including Local Defense Units, in enforcing the lockdown measures, as well as harassment of journalists and human rights defenders in a worrisome trend of shrinking civic space in Uganda. These will be further explored in future posts on both the impact of mobility restrictions on Ugandans’ rights and freedoms, and judicial administration. * The authors would like to warmly thank Irene Anying and Romain Ravet for their input on a first draft version, as well as LASPNET Uganda, especially Badru Walu, for their contribution to the data collection. ^[1] These preventive measures included i.a. the prohibition of mass gatherings, restrictions on weddings and funerals, limitations on traveling to and from abroad. ^[2] Constitution of the Republic of Uganda, art. 110(1)(3). ^[3] Public Health (Notification of Covid-19) Order (17 March 2020); Public Health (Prevention of Covid-19) Order (17 March 2020); Public Health (Prohibition of Entry into Uganda) order (24 March 2020); Public Health (Control of Covid-19) Rules (24 March 2020); Public Health (Control of Covid-19) (No. 2) (Amendment No. 2) Rules, 2020. S.I No. 64 of 2020 (8 May 2020). ^[4] According to Article 110 (1) of the Constitution “The President may, by proclamation declare that a state of emergency exists in Uganda, or any part of Uganda – which render necessary the taking of measures which are required for securing the public safety.” ^[5] See also International Covenant on Civil and Political rights, i.a. art. 4, 12(3), 21 ; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, paras. 15, 25. ^[6] Article 110 (6) of the Constitution of Uganda provides that: “During any period when a state of emergency declared under this article exists, the President shall submit to Parliament at such intervals as Parliament may prescribe, regular reports on actions taken by or on behalf of the President for the purposes of the emergency.” Moreover, if a State of Emergency is declared, Articles 47 to 48 of the Constitution set special rules with regard to detention, and a specific control that must be exercised by Parliament. ^[7] Gerald Karuhanga & Jonathan Odur v. Attorney General., 29 April 2020 (written version of judgment not available). ^[8] Uganda Chief Justice’s Circular, Administrative and Contingency Measures to Prevent and Mitigate the Spread of Corona Virus (Covid-19) by the Judiciary (19 March 2020). The measures have since been renewed, though mitigated, in the Uganda Chief Justice’s “Guidelines for online hearings in the Judiciary of Uganda” (29 April 2020) https://bit.ly/2BA0M3r. ^[9] Turyamusiima Geoffrey v Attorney General & Jane Ruth Aceng, Misc. Application No. 64 of 2020. The ULS did not agree on the limitation to 30 of its members. This will be discussed in a further post on the administration of justice.