Indonesia: 5 years supporting access to justice

In 2017, ASF launched its activities in Indonesia with two local partners. Together, we worked to increase access to both formal and informal justice mechanisms for marginalized and groups in vulnerable situations through improved community-level, evidence based service delivery. A special focus was put on training and supporting paralegals to help them assist local populations in their justice needs.

In countries with very few lawyers per capita, paralegals are practitioners who do not possess a law degree but have a basic knowledge and understanding of the law and deliver legal advice to the population. ASF has worked with paralegals in several of its countries of intervention as they can be fundamental actors in helping local populations access justice.

A baseline perception study on paralegals and the role they can play in strengthening access to justice was produced at the start of the project. Its findings were used to create training modules. These modules were then used by several local organizations to reinforce paralegals’ capacities. They address a large scope of subjects, with different thematic and geographical coverage, which made them flexible and useful for a great variety of organizations. Our partners have found it to be instrumental in supporting the enactment of the legal aid local regulation in Bali in 2019.

In the frame of the project, three digital platforms were launched to support civil society organisations.

A Case Management System was created and is now used by several organisations to manage the cases they are working on in a database. It has been developed in open source so that any legal aid organization can use it freely. 

The Paralegal Information System was created to help paralegals request and receive legal support from lawyers in order to asssit them in the cases they work on.

And finally, an application called E-resource, was created to allow legal aid service providers to access books and other resources.

To support advocacy efforts, a community of practice was created with multiple stakeholders working on legal aid issues. It allowed members to debate on future necessary legilslative reforms to promote. Those 5 years in Indonesia enabled us and our partners to draw important conclusions regarding access to justice in the region. First, it is undeniable that paralegals play an essential role in assisting local population in their justice needs. Their status needs to be further recognized by local and national authorities. Secondly, the production of flexible training modules with the possibilitly to choose the materials is easier to replicate and should be prefered to a fixed curriculum. Finally, even though the use of digital platforms to strengthen capacities of civil society organizations has been promising, it proved to be very expensive and lengthy to implement. It must be tailored for each organization, which can take months of discussions. The availability of IT officer and maintenance through funding source must be found to ensure the service sustainability.

A dire need to integrate human rights in the Covid-19 crisis management

As authorities initially downplayed the gravity of the Covid-19 health crisis, a sense of astonishment prevailed throughout the world at the unprecedented nature and scale of the measures that were later taken. More than half of the world’s population has found itself locked down, with varying economic, social, physical and mental consequences on individuals depending on personal and political context.

Like everyone else, ASF has had to adapt, in very different and sometimes very volatile environments. Very quickly, a tendency emerged in all the monitored countries, whether they were authoritarian regimes, states in post-conflict situations, in democratic transition, or even so-called consolidated democracies: human rights were almost systematically absent from the political discourse and the authorities’ decision-making.

Each measure adopted in the context of the health crisis has led to the limitation of rights and freedoms, sometimes in a domino effect. For example, lockdown measures not only affected the right to freedom of movement, but also the right to education, the right to work, and in some cases even the right to health or food.

However, human rights can only be limited by law and in a way that is strictly proportionate to the goal pursued. This goes hand in hand with the principle of necessity according to which, faced with a range of options, the State must necessarily choose the one that least infringes rights and freedoms. While these principles should have guided reflection, they received little echo in political decision-making.

Aiming to defend and promote a human rights-centred approach, ASF and its partners developed a framework for monitoring the impact of Covid-19 measures on human rights and the principles of the rule of law. It started in March 2020 in Tunisia, Uganda, Indonesia, the Democratic Republic of Congo and Belgium. This monitoring has been complemented by numerous actions regarding access to justice, particularly on the issue of prison overcrowding. The systematic integration of a “Covid-19 approach” has allowed ASF to highlight how essential principles of protection and promotion of human rights have been breached in all political systems. The data collected in these few countries illustrate a global trend, providing an alarming picture of the situation.

The absence of a both international and regional governance frameworks on these issues has led to ad hoc chain reactions, with a quasi-systematic strengthening of executive powers, even when less human rights-infringing solutions were available to policy makers. This led to an important personification of the health response. These unprecedented reinforcements of executive powers, as seen in Tunisia or Uganda, made the respect for the human rights potentially subject to arbitrariness for some groups of the population.

It was also repeatedly observed that the measures adopted were unclear, both in terms of their scope over time and in terms of their content. Failure to comply with social distancing or containment measures has often been criminalised, repeatedly undermining the principle of legality for offences and penalties. In Indonesia, for example, sanctions have been imposed by administrative authorities – rather than national representation – and sometimes with no legal basis. Much room has been left for interpretation by the security forces, allowing arbitrariness and potential abuse, particularly in states that are already heavily policed. In some cases, authorities did not hesitate to use Covid-19 measures to further restrict civic space and silence human rights defenders.

This tendency to criminalize, which went as far as incarcerating offenders, has thus been at odds with the very logic of social distancing advocated by the authorities in contexts of severe prison overcrowding. The suspension of judicial activities has also led to potentially illegal detention of people in pre-trial or provisional detention. Calls for prison deflation, which already existed prior to the health crisis, have multiplied in the face of the increased vulnerability of detainees and the disproportionate violation of their rights caused by the suspension of visiting rights. Although some States, such as Uganda and Tunisia, finally released – although sometimes only provisionally – prisoners nearing the end of their sentences or convicted for minor offences, the announcement effect quickly faded as prison occupation quickly grew back to similar or higher rates compared to pre-crisis data.

The situation of detainees is only one illustration of the differentiated, and potentially discriminatory, impact of the health measures suffered by categories of people already in a situation of vulnerability. The upsurge in cases of gender-based violence, particularly in the domestic context, has been systematic. Pre-existing vulnerabilities have further exposed people to the health crisis, and to its devastating socio-economic consequences. A study carried out in Belgium highlighted this very clearly: even though the measures taken were neutral in their formulation, they produced particularly harmful effects on migrant people, racialised people and detainees. This uneven impact on groups of the population could be characterized as indirect discriminiation.

Finally, the various trends observed exacerbated the structural and individual weaknesses that existed prior to the crisis. At a time when prospects for a way out of the crisis are themselves uncertain, it is more important than ever to continue and anchor this monitoring work and, above all, to integrate the human rights-based approach into the governance and evaluation mechanisms put in place throughout this year. Civil society has overly been relegated to their role as watchdogs, without being guaranteed a space to participate constructively – notably on the basis of field data, such as those collected by ASF and its partners – in these frameworks for dialogue.

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The health crisis in Belgium: A breeding ground for indirect discrimination?

Avocats Sans Frontières publishes a study on the indirectly discriminatory impact of Belgian emergency policies on certain categories of the population, particularly vulnerable ones. The analysis, carried out as part of the project ‘Covid-19 Monitoring and Rule of Law’, relies on observation activities, as well as a set of interviews conducted by ASF in June and July 2020.

To limit the spread of Covid-19, the Belgian government took, at the start of the health crisis, a set of measures contained on March 23rd 2020’s ministerial ruling, aiming to reduce contact between people and imposing a general lockdown. [1]

These measures, seeming neutral at first, because applicable to the entire population, however indirectly had discriminatory consequences, in their enforcement on certain groups of vulnerable people. [2]

Several interviews conducted with social workers, mediation and surveillance bodies active in Belgium during the lockdown, as well as a documentary analysis; revealed that immigrants, prison inmates, homeless people, women victims of violence, the elderly and the handicapped, those economically vulnerable, and those living in deprived neighborhoods, indeed suffered more than others from the emergency sanitary measures.

This is due, partly, to a uniform response to the crisis, which only exacerbated pre-existing socio-economical inequalities. It is also imputable to differences in the enforcement of the measures, more severe on certain social groups.

In the first instance, the interruption or limitation of access to social assistance, to visas and asylum, caused by the generalized closure or digitization of essential services, has had the effect of further weakening the already vulnerable segments of the population to whom these services are addressed. This freezing of services has also triggered a ‘domino effect’, best illustrated by the emergence of a new population of homeless people who were unable to assert their economic and social rights during the lockdown period. Beyond the interruption of essential services, the general lockdown decided by the government has further degraded the condition of certain groups of people, hence not affecting the entire population in the same way. Those who could not stay “at home,” those held in prisons or detention centers, those in shelters, the homeless, and women victims of domestic violence due to lack of decent and safe housing paid a greater price. For them, compliance with lockdown measures has sometimes violated their human rights, such as the right to dignity or the prohibition of inhuman and degrading treatment. In other cases, lockdown was physically impossible.

In the second instance, indirect discrimination was also induced during the police checks of compliance with lockdown measures. Such abuses were observed on several occasions and appeared to result both from the vagueness of the government’s measures and from a significant scope for interpretation left to the police. Cross-analysis of the incidents collected during the interviews, supplemented by documentary monitoring, revealed a practice of profiling in the application and monitoring of measures, or at least a tendency to target certain groups of people more heavily based on their membership in specific social strata and ethnic groups, or specific neighborhoods and areas.

As the European Court of Human Rights instructs, such discrimination, if it can be proven, entails the responsibility of the Belgian State. Indeed, the latter did not take into account the existing inequalities within society when managing the crisis and did not qualify the measures to protect these categories of vulnerable people, by amplifying economic and social differences.

Author : Flavia Clementi

[1] Text available at .

[2] Measures that are neutral in their formulation may nevertheless have discriminatory effects on certain groups of people when implemented. These discriminations are classified as ‘indirect discrimination’ by European and Council of Europe law.

Indonesia: A cacophonic legal response to the Covid-19 pandemic to the expense of human rights

Indonesia has been particularly impacted by Covid-19. According to official data,[1] Indonesia ranks second within South East Asia in terms of positive cases ; fifth in terms of mortality rate. 20,5% of Covid-19 cases were located in the capital city, Jakarta. This blogpost focuses on the legal response adopted in the first phase of the pandemic, i.e. until Mid-June 2020, when regions started to ease “large-scale social restrictions” previously adopted to respond to the pandemic.

A hybrid – and confusing – institutional response to the Covid-19 crisis

After denying the presence of the Covid-19 pandemic within the archipelago, the Indonesian government contemplated triggering civil emergency, on the basis of the 1959 Emergency Law, which is rather aimed at responding to coups and other such events threatening the institutions. Following civil society and political opposition’s uproar, the government eventually adopted a more nuanced approach, and instead the president proclaimed health emergency,[2] based on the Health Quarantine Law No. 6/2018. Meanwhile, the National Agency for Disaster Management (Bahasa acronym BNBP) declared Covid-19 a natural disaster as of January 2020, and adopted a number of early measures to attempt containing the crisis.[3] On the basis of the Disaster Management Law 24/2007, the BNBP’s mandate usually applies to threats such as a tsunami, earthquakes and volcanic eruptions.

Against this background, President Jokowi adopted a hybrid legal approach, grounding the substantial measures on the Health Quarantine Law, while designating the BNBP as the coordinator of the national taskforce.[4] Yet, according to the former law, the responsibility to handle an epidemic falls back to the central government, namely the President and the Ministry of Health.

This is not only a legal challenge, but also a practical one, as institutional coordination is particularly challenging in Indonesia, in light of the number of entities involved both at the central and regional levels. In the Covid-19 context, each Ministry at the central level retained its policy prerogatives, which has led, at several occasions, to the enactment of conflicting regulations. For instance, the Health ministry decided on measures of social-distancing within the business sector,[5] which contradicted a regulation adopted by the Ministry of Industry.[6]

The lack of central coordination contributed to scattered approaches at the regional level, as the central Executive did not provide any guidance as to how to implement the measures it had enacted.[7] As a result, each region set a different deadline for easing health emergency measures. These decisions were based on the regional authorities’ own intuitive criteria, in the absence of any harmonised criteria related to the statute of the pandemic. The cacophony could also be observed at the central level, with the announcement late-May of restarting economic activities, at a time when the number of cases was still increasing.[8] In this regard, it has been observed that the government did not respect the WHO guidelines, as it did not include the death rate among the various statistics on which it grounded its decisions.[9]

A policy-induced vicious circle of vulnerability

The choice of policy was not neutral either. The Health Quarantine Law foresees a range of four distinct actions to address an epidemic: home quarantine; hospital quarantine; lockdown and large scale-social restrictions (LSSR). The three first ones are quite narrowly defined in terms of restrictions to the freedom of movement. Their implementation should go hand in hand with measures meant to address basic needs of those impacted, including their pets and livestock. In turn, the authorities have the mandate to assign sanctions to those who would not respect the measures.

Yet, the government decided to implement LSSR, which consists in measures such as temporary closure of schools, a number of public places and social distancing, rather than any of the three first options.

In practice, LSSR became a de facto lockdown,[10] as restrictions to move from one province to another were enforced through a range of sanctions – including warning, sealing, physical punishment and criminal sanctions – though not foreseen in the Health Quarantine Law. This raises the question of the legal basis for any such sanctions, which were predominantly deployed at the local level. For instance, the Jakarta Governor enacted some regulation which sanctioned the absence of wearing a mask with the obligation to clean public facilities,[11] a sanction which is completely foreign to criminal law and therefore in clear breach with the principle of legality, as stated at art. 1 of the Indonesian criminal code. The overall sanction regime, whether criminal or else, is also likely to Infringe the principle of legal certainty, enshrined in art. 28 D of the Indonesian Constitution. The police thus passed its own regulations, through internal notice[12] and telegram[13] to regulate this matter, which contributed to weaken the central government’s leadership amidst the crisis.

Furthermore, LSSR is a measure which, in in the Health Quarantine Law, does not require the fulfilment of basic needs. According to art. 28 C(1) of the Constitution, the fulfilment of Indonesians’ basic needs is a precondition to realise their right to individual development. In a country where informal economy is quite spread, the implementation of a strict lockdown policy without any forms of economic compensation or social support could not have any other effects than throwing millions of Indonesians into a deep social crisis, and infringing their human rights on many levels.

Both during the implementation of LSSR and afterwards, the Indonesian executive has overlooked small businesses and categories of population in situation of vulnerability. Social welfare is relatively limited in Indonesia and the post-Covid-19 recovery plan predominantly focus on private economic actors to handle economic loss.[14] In order to survive, these harsh measures led some to violate LSSR and in turn be sanctioned, so as to create a vicious circle of vulnerability.

Authors : Yunita and Elisa Novic

The authors would like to warmly thank LBH Jakarta and Laporcovid for for sharing their data and providing input.

[1] Last consulted on August 10th, 2020.

[2] Presidential Decree No. 11 of 2020 on the Stipulation of Coronavirus Disease 2019 (Covid-19).

[3] See i.a. BNPB decree No. 9A of 2020 concerning the determination of the status of certain emergencies of the disease epidemic due to COVID-19 (28 January 2020); BNPB decree No. 13A of 2020 regarding the extension of the status of certain emergencies from disease outbreaks due to corona virus in Indonesia (29 February 2020).

[4] Presidential Decree No 7 of 2020 concerning the acceleration of the coronavirus disease 2019 (Covid-19) handling, led by a task force steering council (13 March 2020), amended by Presidential decree No 9 of 2020 (20 March 2020).

[5] Health Ministry Regulation No 9 of 2020 providing guidance of LSSR in the context of Covid-19 (3 April 2020).

[6] Circular letter of Ministry of Industry No 4 of 2020 related to the operational implementation of COVID -19 health emergency in factories (7 April 2020), as amended by circular letter No 7 of 2020 (9 April 2020).

[7] Ridzki Putra Ramadhan, Indonesia and COVID-19: Government Issues Regulation on Limiting Social Interaction (2020).

[8] See Health Ministry Decision No. HK.01.07/MENKES/328/2020 (20 May 2020), followed by various local regulations. On 20 May 2020, there was a total of 19,189 cases, including 207 new cases on this single day.

[9] According to, a platform developed by committed citizens, Jakarta’s death rate amounted to 1505 persons, while official data would only count 361 persons (9 May 2020). See Covid-19 situation on Indonesia’s seven main islands in Indonesia.

[10] The government of Jakarta also enacted Regulation no. 47 of 2020 concerning the requirement of a permit letter to enter Jakarta. Yet, such a measure may only be implemented under a lockdown policy (which limits movements within the province).

[11] Jakarta Governor Regulation No. 41 of 2020 concerning sanctions against the implementation of LSSR in Covid-19 in Jakarta.

[12] Indonesian police notice No: 2/III/2020 relating the compliance against COVID-19 policy (19 March 2020)

[13] Telegram of Indonesian police relating LSSR No. ST/1098/IV/HUK.7.1/2020 that can criminalize people against the authority (4 April 2020), Telegram of Indonesian police relating cyber No. ST/1100/IV/HUK.7.1/2020 that gives sanction for combatting hoax and defamation to president/government (4 April 2020)

[14] Regulation in lieu of law (Bahasa acronym Perppu) No 1 of 2020. Furthermore, the regulation in lieu of law also mentioned that the government cannot be sued for any conduct in good faith mentioned by the regulation.

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The Tunisian response to the Covid-19 pandemic – When the state of exception overlaps with the state of emergency

Authors : Antonio Manganella, Oumayma Mehdi, Elisa Novic, Johanna Wagman, Ragheb Zouaoui

A gradual regulatory response

As the Covid-19 pandemic entered a peak phase in China and was becoming more and more threatening in Europe, Tunisia very quickly deployed a preventative response, conscious of its health system’s weakness to contain such a crisis. The first measures were thus put in place on 26 January, with the installation of thermal cameras and, as of early March, the development of isolation practices for symptomatic people and 14-day self-confinement for asymptomatic people from at-risk areas.[1]

The response indeed accelerated on 2 March 2020, with the detection of a first confirmed case from Milan, which prompted the Tunisian State to cross a new threshold in the adoption of measures to contain the pandemic.[2] As the contamination curve continued to grow, on 18 March 2020, the President of the Republic announced a general curfew,[3]  followed by the adoption of a declaration of a general sanitary containment[4] on 21 March 2020, thereby proclaiming a state of emergency under article 80 of the Constitution. On 12 April 2020, the Assembly of the People’s Representatives (APR) voted on the provisional extension of the prerogatives of the Head of Government on the basis of Article 70 of the Constitution.[5]

An inadequate legal arsenal in times of pandemic

Since the Constitution came into force in 2014, the mechanisms provided by Articles 70 and 80 of the Tunisian Constitution had not yet been activated. Until then, in order to meet security challenges posed by the terrorist threat and the instability of its neighbour, Libya, the executive used to resort to a state of emergency, provided for by Decree no. 78-50 of 26 January 1978. In fact, the state of emergency was renewed for the umpteenth time during the COVID-29 pandemic, though there is no evident link with the fight against the virus.[6] This decree is already largely condemned by civil society due to its institutional and obsolete nature,[7] insofar as its origins go back to the repression of protests organised in 1978 by the Tunisian General Labour Union against the dictatorial regime and human rights violations. The implementation of the curfew following the declaration of a state of emergency is then left to the Governors, who are affiliated to the Ministry of Interior and not to the Presidency of the Republic.[8]  This led to a potential risk of dephasing or disparity in the response to the health crisis, requiring a rapid response.[9]

The legislative instruments relating to public health did not provide an answer to the scope of Covid-19 either. Act no. 92-71 related to transmissible diseases is in fact limited to the automatic hospitalisation of persons suffering from such listed diseases for persons refusing treatment or engaging in risky behaviour.

Article 70 of the Constitution, related to the ARP’s delegation of powers to the government, could undoubtedly have filled this role much earlier in the chronology of events, except Tunisia was then in the midst of a political crisis. This crisis followed the legislative elections of October 2019, from which no clear majority emerged, slowing down the formation of a government. Out of principle, a caretaker government is not entitled to the special powers provided for in Article 70, which would allow it to legislate, in the form of statutory laws, in place of the APR. It was only on 27 February 2020 that Elyes Fakhfakh’s Government gained the trust of deputies. A month later, it was a Head of Government, whose legitimacy was still in the making, who proposed an enabling bill before the APR, which was finally passed after around two weeks of debate.

Under these circumstances, the President of the Republic himself could have introduced a bill,[10] which would have made it possible to comply with the terms of Article 49 of the Constitution, which provides that restrictions on the fundamental rights and freedoms of Tunisians must be provided for by law and be solely for the purpose of “meeting the requirements of a civil and democratic State,” which includes “safeguarding (…) public health.” Furthermore, they must be subject to judicial control. It is important to note that the main international and regional instruments of human rights protection also emphasise the role of parliaments in limiting rights and freedoms,[11] particularly in emergency contexts. [12]

However, the President of the Republic, Kaïs Saïed chose, perhaps for the sake of speed, to resort to the exceptional mechanism available, the proclamation of a state of emergency as foreseen in article 80 of the Constitution, thus acknowledging an “imminent threat to the national integrity, security or independence of the country and hindering the proper functioning of the public powers.” This provision does not refer to the status of rights and freedoms once a state of exception has been declared, which gave rise to many fears when the Constitution was adopted in 2014.[13] While Article 80 may be questionable in terms of its adequacy as a response to a health crisis, its triggering has above all perpetrated a situation that is fundamentally unconstitutional, insofar as it is conditional upon consultation with the highest authorities of the State, including the President of the Constitutional Court. Moreover, the President of the ARP and the 30 deputies must be able to enter a provision to the Constitutional Court “to give a ruling on the maintenance of the state of exception” at the end of the 30 day period following the exceptional measures entering into force. Yet, there is no Constitutional Court in Tunisia, despite the fact that the Constitution sets strict deadlines for its establishment, which is crucial for guaranteeing the balance of powers and the rule of law. To date, Tunisia is almost five years behind schedule with regard to constitutional requirements.[14]

The APR’s democratic control of the Executive

The APR’s reluctance to vote on the Government’s authority to legislate in this context is understandable, given that this institution was the last safeguard provided for by Article 80, which stipulates that it sits in “permanent session” for the duration of the state of emergency. Similarly, the deputies have limited the risk of a monopoly of power by the executive. The Enabling Act, adopted on 12 April 2020, is in fact an amended version of the bill proposed by the executive, the scope of which is strictly limited to the response period for Covid-19. This is the case with the possibility of regulating rights and freedoms, which must thus be implemented “in a manner appropriate to the preventative measures necessary to deal with the spread and transmission of the Coronavirus, in accordance with the requirements of Article 49 of the Constitution.”[15]  According to Article 70, these statutory laws adopted by the Government are submitted to the APR for approval at the end of the two months following the delegation of powers. To avoid being faced with a fait accompli, the APR has indicated in the Enabling Act that statutory laws shall be examined according to the same procedures as “legislative proposals.”[16]  This thus allows for the referral to the Provisional Body for the review of the constitutionality of statutory laws, particularly in the event that certain measures considered by the executive would apply beyond the period of Covid-19. [17]

Following the Enabling Act, the President of the Republic no longer resorted to Article 80 of the Constitution. The containment measures have been gradually lifted from 4 May with the curfew measure definitively lifted on 8 June.

All is well that ends well?

While Tunisia has been in a permanent state of emergency since the attacks of 2015, the successive triggering of two constitutional provisions, Articles 70 and 80, strengthening the powers of the executive, could legitimately raise serious concerns about respect for the rule of law and democratic principles.

Having just emerged from an institutional crisis lasting several months, the political decision-makers acted responsibly in this case. However, had the actors involved been different, the outcome could have been rather different. The fact that the use of such powers may depend on the individual conscience of the leaders shows the weakness of the institutional reforms aiming at implementing the constitutional assets inherited from successive rulers since 2014.

It goes without saying that if the current political decision-makers want to mark a real breakaway from the previous five-year term, they should make the establishment of the constitutional instances, starting with the Constitutional Court; one of their priorities. This applies particularly to the APR, the Superior Council of Magistracy and the President of the Republic.

In this regard, the APR is expected to display a strong sense of responsibility, as it bears most responsibility for the absence of a Constitutional Court. Over the last four years, the APR has been unable to reach the necessary consensus for the election of its four Court members. These repeated failures should not be used as a pretext to change the required majority for such an election, and thus compromise the Constitutional Court and its members’ independence.

Until the Constitutional Court is established, the President of the Republic should refrain from using Article 80 of the Constitution and from renewing the state of emergency on the basis of an unconstitutional legal instrument, which breaches citizens’ rights and freedoms.

The review of the Tunisian legal framework is now crucial to draw lessons from this pandemic crisis and ensure that the appropriate and proportionate mechanisms are available in the future.

[1] See Inkyfada, Covid-19 : Chronology of the management of the epidemic in Tunisia (2020).

[2] These measures included the closure of the majority of educational institutions, the postponement of cultural events and of non-urgent medical operations, and the closure of maritime borders with Italy.

[3] Presidential Decree no. 2020-24 of 18 March 2020, establishing the curfew throughout the Republic.

[4] The declaration was made following the first case of death and was endorsed in the presidential decree no. 2020-28 of 22 March 2020. This measure was accompanied by the prohibition of unauthorised travel under the Government decree no. 2020-156 of 22 March 2020, laying down essential needs and requirements necessary to ensure the continued operation of vital services as part of the implementation of full containment measures.

[5] Act no. 2020-19 of 12 April 2020, enabling the Head of Government to adopt statutory laws in order to deal with the repercussions of the spread of the Coronavirus.

[6] Presidential Decree no. 2020-54 of 29 May 2020, extension of the state of emergency.

[7] A draft organic bill on the organisation of the state of emergency had been proposed to the APR in 2019 by the preceding Government, but eventually abandoned under pressure from civil society which pointed out its vagueness and detriment to the constitutionally guaranteed rights and freedoms. For more information, see the analysis developed by the member organisations of the Security and Freedom Alliance (2019).

[8] In Tunisia, the executive power is bicephalous, which means that executive power is made up of two ‘heads’: The President of the Republic and the Head of Government.

[9] Article. 4 of decree no. 78-50 provides for the possibility for Governors to order a travel ban, but not to limit it.

[10] Constitution of the Republic of Tunisia (2014), art. 62 al. 1.

[11] E.g. on the freedom of movement see i.a. African Charter on Human and Peoples’ Rights, art. 12(2) International Covenant on Civil and Political Rights (ICCPR) art. 12(3).

[12] ICCPR, ibid. art. 4 ; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, paras. 15-18.

[13] See i.a. The Carter Center, The constitutional process in Tunisia, Final Report – 2011-2014, p. 92.

[14] Constitution of the Republic of Tunisia (2014) art. 148 al 5.

[15] Act no. 2020-19 of 12 April 2020, enabling the Head of Government to issue legislative decrees in order to deal with the repercussions of the spread of Coronavirus, art. 1(2). In addition to the provisions on rights and freedoms, the act delegates i.a. to the Government the task of legislating on questions of economic and fiscal support for economic actors, the organisation of health prevention measures, particularly in schools, and the control of the civil service

[16] Ibid. art. 3.

[17] For example, see draft bill no. 12/2020, setting up remote criminal hearings, with explicit reference to application beyond the pandemic period.

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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 18th, before any cases were recorded in the country.[1] By the time Uganda had recorded its first case on March 22nd, 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 18th 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 18th President’s directive only became a ministerial rule, published in the official gazette, on March 24th. 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 20th, 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) [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. Continue reading “Uganda’s de facto state of emergency to address the Covid-19 pandemic”