To limit the spread of the novel coronavirus, the Nigerian government took restrictive containment measures, with the effect of curtailing fundamental rights. These included lockdowns of various states and a cessation of social and economic activity, except those activities relating to essential services. While these measures followed existing public health advisories, they have raised significant legal, constitutional, human rights, and legitimacy issues.
Between enabling and suffocating legal measures
Tensions between welfarisms that enable and those that suffocate are evident in Ireland’s move to restrict the spread of the COVID-19 pandemic, and in the reaction to it.
Two pieces of emergency legislation passed through Oireachtas Eireann (the Irish Parliament) by March 26th. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the Emergency Measures in the Public Interest Act 2020 address a range of social, civil and economic issues. Read More
By Eduardo Dargent and Camila Gianella
Peru was among the first Latin American countries to implement legal measures that restrict civil rights in order to stem the spread of COVID-19.
On March 15, with 28 confirmed cases and no deaths, the government issued the Supreme Decree N° 044-2020-PCM declaring a state of emergency for 15 days. Measures in the decree included closing the borders, ordering a general lockdown, forbidding domestic travel, and closing schools, universities, churches, and all non-essential businesses, among others.
By Mark Heywood
South Africa’s first case of COVID-19 was confirmed on March 5th, 2020. Ten days later, on March 15th, 2020, the government utilized the Disaster Management Act (2002) to declare a State of National Disaster. Under this Act, the government set up a National Command Council (NCC) made up of Cabinet Ministers and restricted certain rights necessary to prevent SARS-Cov-2 transmission and “flatten the curve.”
A national lockdown started on March 27th. It was relaxed slightly (to level 4) on May 1st, and was further relaxed (to level 3) on June 1st. The lockdown severely restricted freedom of movement, closed all but essential companies and schools, banned the sale of alcohol and tobacco, and introduced a night-time curfew between 8pm and 5am. By May 22nd, the Minister of Police reported that 230,000 people had been arrested for violating lock-down regulations.
The most affected constitutionally recognized rights are freedom of movement, assembly, and trade. However, on paper at least, care has been taken to ensure that political rights and rights to freedom of expression and association are not limited, and the President has couched the country’s response in terms of the Constitution, particularly the rights to life, dignity and access to health care services. He has also frequently referred to the right to equality and promised that in the post COVID-19 period South Africa will do much more to tackle the inequalities that have been exposed by the coronavirus.
The Disaster Management Act empowers the President to appoint a Cabinet Minister (in this case the Minister of Cooperative Governance and Traditional Affairs) to issue special regulations, which have been released on an almost weekly basis.
Civil society lawyers and activists have analyzed these regulations in an on-line (and regularly updated) guide to the law that identifies the numerous human rights risks and possibilities for abuse created by the regulations. In addition, civil society organizations set up a legal support hotline where violations can be reported, and developed a wide range of human rights resources.
Though many of the ordinary functions of the Courts were suspended from March 27th onward, a number of matters challenging the lawfulness of regulations and their implementation have been brought to courts, sometimes successfully. Political parties and social justice organizations have challenged their rationality and the lawfulness of the NCC.
People have also questioned the deployment of the South African National Defence Force (SANDF) to affected communities. There have been a significant number of cases reported of police and army brutality, including at least 11 deaths. A sucessful legal challenge was brought concerning the murder of Collins Khosa by members of the SANDF in the township of Alexandra in Johannesburg. On May 15th 2020, in a detailed and far-reaching judgment, the Court made it clear that members of the security forces must respect and protect rights to dignity and life, not commit torture, and only resort to minimum force to enforce the law. The SANDF was instructed to publicize the Court’s order, investigate the death properly, warn its members against criminality, and develop a code of conduct “in giving effect to the state of disaster.”
The anti-repression working group of the C-19 People’s Coalition Civil — an alliance of over 300 organizations — and the SA Human Rights Commission have been involved in monitoring cases of police and army brutality. There have also been a number of illegal evictions of people occupying municipal land, despite a legal prohibition on evictions during lockdown. In one instance a court application halted evictions in a community outside Cape Town.
President Ramaphosa has welcomed the use of courts to challenge unlawful conduct.
Unfortunately, South Africa has not respected its legal obligations either in terms of constitutional or international law towards the millions of people who are asylum seekers, refugees and undocumented migrants. People without a South African identity document or permanent residence do not qualify for various forms of social relief (support to small and informal business; a special COVID-19 relief of distress grant; a topped-up Child Support Grant) that were introduced in April 2020. This, too, is the subject of legal challenges.
The lockdown has had a particularly negative effect on women, especially with respect to vulnerability to domestic violence. Until recently, women were not allowed out of homes to report violence; nonetheless, reports of domestic violence have risen sharply.
Another group that is particularly vulnerable during the COVID-19 pandemic is prisoners. Inspecting Judge of Correctional Services Edwin Cameron and the Detention Justice Forum called on the government to release certain categories of prisoners. As a result, in early May, the President announced early parole for certain categories of prisoners, leading to the release of nearly 19,000 inmates.
Measures taken to prevent COVID-19 have also had a profound effect on socio-economic rights, overwhelmingly of black people. There has been a massive increase in food insecurity and hunger (which was already very high). The closure of schools risks disadvantaging a generation of learners and increasing inequality in educational outcomes, and the phased re-opening of schools has been highly contested. There are over 70 water-stressed communities, and generally sanitation and access to water are suboptimal in poor communities. Livelihoods and food systems have been disrupted, and there is growing evidence that other health care services and programs, including HIV, TB, sexual and reproductive health care are being adversely affected.
Nonetheless, until recently there was overwhelming support for the country’s measures to stop the spread of COVID-19. A survey by the Human Sciences Research Council (released on April 26th) revealed high levels of compliance. An informal and undeclared social contract came into effect: although there have been multiple violations of rights, initially there was a high degree of trust in the government response.
However, South Africa is now entering a very difficult phase of the epidemic: infections and deaths are increasing rapidly and chronic hunger, malnutrition, and unemployment are making themselves felt. Reflecting this, there are a growing number of legal challenges to the Constitutionality of regulations issued via the Disaster Management Act. For example, two important judgments in early June struck down certain regulations on grounds of rationality and their impact on fundamental human rights.
Compared to other countries in Southern Africa, South Africa’s response to COVID-19 has mostly respected the rule of law. But whether it ultimately comes out on the right or wrong side of human rights remains to be seen.
Mark Heywood is the editor of Maverick Citizen, an online news publication focusing on human rights, social justice and civil society activism. He was previously the founder and Director of SECTION27, as well as a co-founder of the Treatment Action Campaign (TAC).
By Alicia Ely Yamin
- The crisis exposes dramatically different impacts on the distinct interests protected as “privacy” rights.
Life in democratic societies is enhanced when the law protects what information and aspects of intimate personal life an individual shares with others.
But the pandemic has accelerated the use of a variety of surveillance technologies, which are now being introduced and/or rapidly expanded to trace the virus, and in turn individuals’ movements and lives. One South Korean legal expert interviewed for this symposium said, “It looks like we’re living at the end of privacy.”
Our latest digital symposium, Global Responses to COVID-19: Rights, Democracy, and the Law, presents a snapshot of the spectrum of rights-related measures adopted in response to the pandemic in dozens of countries to date.
Given the international focus of the symposium, we opted not to solicit a submission representing the situation in the United States. However, the Bill of Health blog has published numerous relevant posts on different dimensions of legal and policy responses to the COVID-19 pandemic in the United States.
The selections below, which we will continually update, offer an array of perspectives on how the U.S. response to the pandemic has affected rights, democracy, and the rule of law.
Mexico is a country of contrasts; both in the richness of our culture as in the advances and shortcomings that have arisen in our path towards the effective protection of human rights. In the face of the health crisis due to COVID-19, violations to rights and liberties are a latent risk.
The Mexican Health System is too fragile to face COVID-19 due to the corruption and lack of investment of former administrations, and due to poorly-implemented reforms made by the current administration. Read More
On its face, Norway is a COVID-19 success story.
Facing rapidly increasing infection, the government introduced on March 12th, 2020 a wide-ranging lockdown. The sovereign wealth fund was tapped to bolster public spending and ensure that welfare for most citizens remain relatively unchanged. By April, the outbreak was brought under control; and, as of May 7th, domestic lockdown restrictions were partially eased.
This success is partly due to widespread trust in government and national public health authorities, and the mobilization of the deeply ingrained cultural concept of “dugnad,” voluntary and collective work. However, the government’s interventionist response raises many questions with respect to the rule of law and human rights, which we explore in this blog.
By Aeyal Gross
Facing the novel Coronavirus, Israel adopted a series of legal measures that have restricted various human rights both directly and indirectly.
The earliest restrictions — requirements established in February for people returning from abroad to isolate — were, in March, gradually broadened to restrict freedom of movement within Israel, ranging from a general lockdown, which at its peak restricted any outing to walking or exercising only within 100 meters of one’s home, except for specific purposes, to cordon sanitaire for areas with bigger outbreaks, which prohibited movement into and out of those regions.
The various restrictions created severe limitations not only on the right to freedom of movement itself, but also on family life, freedom of assembly, and freedom of religion.
Like many other countries, different levels of government in Canada have adopted a wide range of measures in response to COVID-19. Many of the measures vary from province to province and municipality to municipality.
Canada is a federation composed of a federal government, three territorial governments (which operate with delegated federal authority), ten provincial governments, and thousands of municipal governments (which exercise powers delegated by the provinces).
Each level of government has distinct responsibilities under the Constitution Act, and each has used a variety of legal instruments including laws, regulations, executive orders, directives and by-laws, during the COVID-19 pandemic to protect public health. This brief overview offers a few examples of the legal instruments that have impacted individual civil liberties.