The Corona Virus Disease of 2019 (COVID-19) has had innumerable effects on the global social dynamics, the political scene and economy. It has forced society to reflect upon its lifestyle; sparking what is now called the ‘new normal’. Weaknesses have been exposed here and there. Countries with the best healthcare systems suffered the most. The USA and the UK were rated as first and second respectively among the countries best equipped to counter a pandemic. In the same measure, approximately, the USA has had 130000 deaths and the UK has had 44000 deaths. The irony!
Here at home the government was quick to react to COVID-19. In a national address that set stage for a semi-series of what social media termed ‘keeping up with Ssevo’, the President assured the country that his government was ready to take the bull by the horns. Schools were shut down and at later stages; public transport, private transport, places of worship and entertainment spots were suspended from operation. Only essential workers, as designated by the Office of the Prime Minister (OPM), were permitted to continue operation.
Although all this was in good faith, its enforcement especially by the somewhat inept Local Defence Unit (LDU) personnel was with a hand that was reminiscent of the Obote era.
The measures/directives of government in the effort against COVID-19 will definitely leave a mark. Here, I’m not talking about the social evolution as ignited by the novel virus. The President’s directives had the force of law. This feature, when observed, whatever one’s political philosophy, creates a query of legality, or illegality, as the case may be. The framers of this Republic’s Constitution were keen on eliminating the possibility of a presidency like that of Obote I and Amin.
The Supreme law of the land requires that any derogation of any rights should be in a manner that is acceptable and demonstrably justifiable in a free and democratic society. With the country juridically operating under ordinary circumstances, the top office trampled Ugandans’ rights to; work, free movement and education. How close they came to withholding that most fundamental of democratic rights; the right to vote!
Since the country was operating under ordinary conditions; thus, under the limitations of Article 43 of the Constitution; as opposed to a looser measure of legality provided by Articles 46 and 47 under a state of emergency, the President and government in general overreached and many of its actions were ultra vires. Yet, it was all necessary and inevitable. However, no regard was given to the mandate of the law.
Arguments may be raised that the government (Ministry of Health) has the mandate to decree under the Primary Health Care Act. However, the rules were issued by the ministry after the verbal committal by the Head of State. The police, either in ignorance or arrogance, enforced mandates that were null and void, as there was no waiting for the rules from the ministry to be issued.
The president has no mandate in any capacity or any situation as per the constitution, to issue guidelines (as they were called) that have the force of law (this being a mandate of parliament). For instance, a truck driver that was arrested in breach of curfew, having been on a long upcountry trip at the time the rule was declared by the President on national television, would have no case to answer. Not only because there was no Act of Parliament or Ministerial rule against it at the time, but also because such a rule, had it been issued legally, would fail under the test of Article 43.
Further, the President’s purported creation of a crime (by decree) was an insult to democracy. ‘Whoever causes a gathering should be charged with attempted murder!’ This is not acceptable or demonstrably justifiable in a free and democratic society! Though his logic, having been explained in one of his addresses, may make sense to some; it has no legal grounds or legal logic for that matter. Or perhaps, he was joking!
At this point I’ll beg to be understood. I do not denounce the measures that the government took. However, I despise the abuse of procedure that happened. The government was complacently allowed liberty to abuse its power provided it was directed against the spread of COVID-19. This was an emergency. Yet, the President, against advice from the Speaker and Chief Justice, refused to declare a state of emergency. Byaruhanga AG, supported maintenance of the juristic status quo. He intimated that there was no satisfaction, on the part of the President, that there was need for a state of emergency. Also, there was worry over human rights that may unnecessarily be derogated. Nevertheless, in the end, the country was in a de facto state of emergency.
Whereas some countries didn’t declare states of emergency, my view is that Uganda ought to have done so. First world countries have systems that are capable of operating in emergencies without really having to declare a state of emergency. Also, for those countries, dire situations (usually political) would necessitate such an emergency. These countries also have different histories from ours. Whereas we have to worry about an ultimate presidency, the USA, UK, Italy and the likes have no such worries. Nevertheless, various states in America, and numerous countries declared states of emergency.
Under Article 110, the President, though given authority, has his actions checked by parliament more often than would happen under ordinary circumstances. The actions and declarations by the government (ministry of health) ought to be considered with apprehension. They have fostered violations of human rights. I’ll reiterate, my issue is not with the directives having been issued. My contention is against the circumstances under which the government passed these declarations.
The Primary Health Care Act, the authority of which the ministry relied on, ought to be read in accordance with the Constitution. Granted, the rights violated during the lockdown period were derogatory rights. Nevertheless, even the derogatory rights ought to be derogated with legal authority. And any authority that grants power to derogate a right ought to do so with respect to democratic principles and justice.
In other words, my view is that it should be declared by a body of authority (such as the Constitutional Court) that the Primary Health Care Act (the sections of which the Ministry of Health drew authority) should be applied in a state of emergency, where the country does not require acceptable and demonstrably justifiable policies. Similarly, that the Presidential directives were legally null and void; but for the direness of the circumstances hindering accountability.
It should be done, I opine, to eliminate bad precedent. History should not show us to have tolerated this without question, lest some other President uses it as justification for unacceptable and demonstrably unjustifiable oppression. Of course, under the guise of an emergency without declaring a state of emergency that would create scrutiny over his/her actions.
