During a state of emergency, governments, as the duty-bearers, are allowed to temporarily suspend the exercise and enjoyment of some rights and to bypass some procedural limits in order to have the free hand to deal with the emergency while maintaining law and order. National and international laws, however, set limits for governments to follow during such periods to avoid abuses and possible human rights violations.
Yet, the Government of Ghana, through the Imposition of Restrictions Act, 2020 (Act 1012), is bypassing both international and local laws to address the current emergency, which is likely to result in governmental overreach and impact on the enjoyment of the fundamental rights and freedoms of the people of Ghana.
What is a state of emergency?
A state of emergency is mentioned under article 4(1) of the International Covenant on Civil and Political Rights (ICCPR) as a condition which “threatens the life of the nation.” Both the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR) extend the conditions which will attract a state of emergency to include a period of war, thus article 27 of the ACHR stipulates that “in time of war, public danger, or other emergency that threatens the independence or security of a State Party.” The African Charter on Human and Peoples’ Right does not have a provision on state of emergency to refer to.
In the case of Ghana, according to article 31(9) of the Fourth Republican Constitution, an emergency arises in two situations. First, where there is a natural disaster and, second, “any situation in which any action is taken or is immediately threatened to be taken by any person or body of persons which –
(a) is calculated or likely to deprive the community of the essentials of life; or
(b) renders necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order and of supplies and services essential to the life of the community.
Article 4(1) of the ICCPR allows States Parties, “[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed […to] take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
The World Health Organisation (WHO) declared COVID-19 a pandemic and a public health emergency of international concern on 30 January 2020 to deal with the crisis.
The WHO defines public health emergency as “an occurrence or imminent threat of an illness or health condition, caused by bio terrorism, epidemic or pandemic disease, or (a) novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human facilities or incidents or permanent or long-term disability” (WHO/DCD, 2001).
Does COVID-19 trigger a state of emergency in Ghana?
According to Norman et al, in a 2011 article, “a public health medical emergency essentially is the immediate threat from an outbreak of infectious or contagious agent that poses a high risk of death or serious bodily harm to large numbers of people with risk of exposure because of high level of contagion and transmission of agent.”
A public health emergency will therefore trigger a quarantine or isolation order which will find justification for the restriction of movement under articles 31-32 of the 1992 Constitution and sections 5(a) and (b) of the Emergency Powers Act, 1994 (Act 472).
In addition to the quarantine and isolation, further restrictions have been introduced, including suspension of the following activities or events: public gatherings, including conferences, workshops, funerals, festivals, political rallies, sporting events and sporting clubs, private parties and other social gatherings; night clubs, drinking spots and event centres; and religious activities in churches, mosques, shrines and at crusades, conventions, pilgrimages and other religious gatherings; and travel to Ghana. The restrictions also cover closure of all schools from creche to the university. New restrictions imposed are closure of the country’s borders and the imposition of a partial lockdown in Greater Accra, Tema, Kasoa and Greater Kumasi.
Among the rights suspended or restricted in their exercise and enjoyment by Ghanaians and residents of Ghana are the right to education (closure of schools), freedom of religion (suspension of services in churches and mosques have been suspended for the next four weeks), cultural rights (funerals private burials limitation of numbers to 25), freedom of association (suspension of conferences, workshops), political rights and freedom of expression (suspension of political rallies), leisure (sporting events), and movement (travel advisory, lockdown, closure of the country’s borders).
These suspensions and restrictions constitute massive intrusions into the rights regime of Ghana which can only be justified through the imposition of a state of emergency as required by section 1(1) of Emergency Powers Act, which provides as follows:
In accordance with article 31 of the Constitution, the President may, acting in accordance with the advice of the Council of State, by Proclamation published in the Gazette, declare that a state of emergency exists in the Republic or in a part of the Republic.
Implications of application of Act 1012 on human rights in Ghana
Unfortunately, Ghana has gone the route of a number of states which have enacted what have been described as emergency laws in response to the coronavirus pandemic, without actually declaring a state of emergency under law. Terminologies such as “restriction,” “lockdown,” “lockout,” etc are rather preferred.
It is in this vein that the government has enacted Act 1012, which could have current and future implications for the enjoyment of rights in the country as it constitutes a slippery slope likely to lead to a situation where an illegality will be justified and normalised. What is even more worrying is the fact that the Act has no sunshine clause in it but is rather a permanent Act “to provide for powers to impose restrictions on persons, to give effect to paragraphs (c), (d) and (e) of clause (4) of Article 21 of the Constitution in the event or imminence of an emergency, disaster or similar circumstance to ensure public safety, public health and protection.”
This law, though it indicates in section 3(2) thereof that “[t]he imposition of the restriction under subsection (1) shall be reasonably justifiable in accordance with the spirit of the Constitution,” violates international law and the constitution in a number of critical ways, which are mentioned below.
The role of the Council of State is side-stepped
According to article 31(1) of the Constitution and section 1(1) of the Emergency Powers Act, the President is required to consult the Council of State before issuing a declaration of state of emergency and having it proclaimed in a gazette. However, through the Imposition of Restrictions Act, the President has side-stepped the Council of State. Under section 2(1) of the Imposition of Restrictions Act, the President may rather rely on the advice of “relevant person or body, by Executive Instrument,” to impose restrictions specified in paragraphs (c), (d) and (e) of clause (4) of Article 21 of the Constitution.
The President usurping the power of Parliament
The Emergency Powers Act, deriving its authority from the Constitution gives Parliament the power to revoke the declaration of state of emergency within seventy-two hours after being so notified by the President, and the latter shall act in accordance with the decision of Parliament. This timeframe can be extended to seven days, under article 31(4) of Constitution. The declaration can continue for a period of three months beginning with the date of its being so approved or until such earlier date as many be specified in the resolution (article 31(5).
Yet, under Act 1012, this power is reserved for the President as provided under section 4(1) which stipulates that “[a] restriction imposed [by the President] under subsection (1) of section 2 shall be for a period of not more than three months.”
Again, the Constitution provides that it is Parliament that has the power, by resolution passed by a majority of all members of Parliament, to extend its approval of the declaration for periods of not more than one month at a time. Parliament has the power to revoke a declaration of a state of emergency.
However, under section 4(2) of Act 1012, Parliament’s function is also usurped by the President as provided thus: “Despite subsection (1), the President may, by an Executive Instrument, where the exigencies of the circumstances require (a) shorten the duration of the restriction; or (b) extend the duration of the restriction for not more than one month at a time but in any event for not more than three months.”
Severity of punishment for violating the Act
Concern is also expressed by the severity of the punishment to be imposed by the courts. According to section of the Act, a person found guilty of a violating any of the restrictions imposed could go into jail for about 4 years. This provision is likely to be used to clamp down on government opponents.
Retroactivity of laws
The President gave his speech in which he issued his first directives that introduced the restrictions on the exercise of rights and freedom guaranteed under the Constitution on March 15, 2020. These directives took effect immediately after they were issued. Yet, it took 6 more days for Act 1012 to become law on March 21. It took two more days for the first Executive Instrument (EI) to be issued to give retrospective effect to the directives given by the President. Thus, these directives were not backed by law between the time they were issued on March 15, 2020 until they became law through Act 1012 and the EI. The directives could not be saved or justified by any law, not even under the emergency provisions of the Constitution. Further, article 107(b) of the Constitution prohibits Parliament from passing any law “which operates retrospectively to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 or 182 of this Constitution.”
This provision is backed by article 15(1) of the ICCPR, which provides that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed…”
Concerns with Establishment of Emergency Communications System Instrument, 2020 (EI 63)
EI 63 came into force deriving its authority from section 100 of the Electronic Communications Act, 2008 (Act 775) which grants the President wide powers, including the power to “make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to intercept communications, provide any user information or otherwise in aid of law enforcement or national security.” Based on that, the EI places, under section 1, an obligation on telecommunications companies to put the services of the network provider at the disposal of the state for mass dissemination of information to the public in the case of an emergency, including a public health emergency. They are also obligated to make available all caller and called numbers, merchant codes, roaming files and location log files to the National Communications Authority.
These obligations have the potential to normalise the deployment of mass
surveillance tools which may help to deal with contact tracing but could also be used to violate privacy laws tomorrow.
All the indicators point to the COVID-19 pandemic as a public health emergency which threatens the life of a nation. Therefore, the constitution demands that the government goes by the Emergency Powers Act to limit the exercise and enjoyment of some rights. However, the government rather decided to enact a new law which bypassed the requirements to declare a state of emergency.
While flexibility is important to deal with emergencies, it does not justify in anyway the steps taken by the government to deal with the COVID-19 emergency. It is important to stress the point that governments generally have an uncanny desire to exploit novel situations or emergencies to gain political advantage. Sometimes, they even go their own way to ‘create’ or imagine such a situation and exaggerate it as posing an existential threat to the well-being of the State and which therefore justifies the implementation of emergency rules. Also, as a legacy from the ‘war against terror,’ states have questioned the limitations incorporated into the human rights architecture to impose some duties on rights-holders to observe, claiming it weighs in favour of the latter. For that matter, the ‘war against terror’ introduced some changes to the rules to tip the balance in their favour, even in so-called advanced liberal democracies. As a result, many governments have converted emergency rules, which are supposed to be temporary, into permanent laws. The danger with the Imposition of Restrictions Act, 2020 is that it lends itself to be abused as it can be applied in a variety of situations that the government can imagine or create.
According to a recent Afrobarometer survey, the findings indicated that 75% of the people polled said they were ready to trade off their rights to enjoy better security from their governments. Yet, the point is that this is not an “either or” situation. Asking citizens to choose between rights/freedoms and health is a false choice because we can and should enjoy both, as noted by Yuval Noah Harari in his article, “The world after coronavirus.” For example, powers to break up and limit gatherings are aimed at stopping people from spreading the virus. However, they could also potentially be applied to violate rights to freedom of assembly, freedom of movement, freedom of association, among others. The same could be the case with the EI on communications.
In conclusion, it is worth quoting Fionnuala Ní Aoláin, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, who has observed that, “States and security sector institutions will find emergency powers attractive because they offer shortcuts.” As a result, they tend to “persist and become permanent.” Therefore, “[e]mergency or not, States must reach the same threshold of legality, legitimacy, necessity and proportionality for each measure taken.”
Finally, Harari contends that instead of seeking to protect our health and stop the coronavirus epidemic by instituting totalitarian surveillance regimes, we should rather focus on empowering citizens. An empowered citizenry is well-informed and self- motivated, trusts the State and is ready to propose new social contractual terms with the State to deal with an emergency. This comes about where the State is transparent, accountable and also trusts the citizenry.