KAMPALA – I read a story by Dr Jimmy Spire Ssentongo who travelled from the UK back to Uganda only to be blocked from going home, reason, he had travelled from one of the high-risk corona virus countries.
He was put under a mandatory quarantine at Central Inn hotel in Entebbe with about 40 other travelers. Ssentongo equated his situation to being held hostage and not a quarantine.
He and his new found house mates were told that they would be under mandatory quarantine for 14 days at $100 per night for accommodation before going into other related costs such as laundry and meals among others.
Ssentongo constantly tested negative but his stay under mandatory quarantine was later increased by the Ministry of Health by another 14 days in the interest of public health.
To Ssentongo, the actions of Government were nothing less than unlawful detention and extortion when he was forced to pay for a hotel for his mandatory quarantine against his will.
Many of us below the age of 40 years had only heard of quarantine whenever there was a disease outbreak among animals, birds and sometime crops in particular areas of the country to curb its spread.
A decision in this area would be taken by the district where the outbreak occurred together with the line ministry. However, the covid 19 was a unique incident that that took many Ugandans by surprise even when we have had previous human epidemics in the recent years.
The previous addresses by the head of State have made one think clear, Uganda has managed to contain the corona virus but this does not justify lifting the quarantine. It is evident that the lockdown must continue until while the President consults experts on whether or not to relax some restrictions.
There is no guarantee that the same shall not be extended given a spike in number of foreign truck drivers testing positive. This raises fears that while Ugandans have been locked at their homes, foreign truck drivers have become the real threat to efforts in combating the Covid-19 pandemic.
Did the lockdown infringe or limit constitutional rights:
Ugandans may recall that when the first covid 19 case was recorded, it was followed by an address by the President of Uganda which ushered in several measures intended to minimize the spread of the corona virus. One would have expected measures such as social distancing, staying home, proper hand wash, use of masks, isolating those who might have been exposed to the virus for 14 days as well as treating those who test positive.
The actions of Government were taken based on the Public Health Act which essentially gave the Minister of Health the powers to take such decisions without consulting any stake holder, not even Parliament.
Consequently, the Minister of Health Dr Aceng on 31 March 2020 issued Legal Instrument No. 55 of 2020 to justify all actions that had been taken and those that would follow in the interest of Public health and in effect none derogable rights envisaged under Article 44 of the 1995 constitution. I think the Government had forgotten that the rights under Article 44 are not given by the state and therefore cannot be taken away for whatever reason even under a state of emergency or a health threat such as covid 19. The signing of Legal Instrument No. 55 of 2020 gave the Government the impetus to take decision without recourse to the constitution and other enabling laws.
It appears that the President must have picked some points from his bush war and in so doing opted for limiting movement of persons and transport means, closure of public life, none essential businesses and a night curfew. The closure of businesses denied Ugandans a chance to earn a living and to fend for their families. As a consequence, even landlords were stopped from demanding or collecting rent from their tenants or evicting them for none payment. Market vendors were ordered to sleep in the markets yet their customers who came in contact with these Vendors would be allowed to go home after purchasing.
The curfew saw security personnel beating those who defied this followed by arrests, detention, arraignment in court and remanded. The suspects were of course denied access to justice as the services of their Lawyers had been outlawed and rendered none essential during the lock down. Even if these lawyers wanted to move, they could not do so due to restrictions imposed on vehicles as well as boda bodas. Consequently, the numbers of prisoners on remand shot up by over 2000 in the first one month yet most of their cases were associated with going against the covid 19 measures.
Matters were made worse that when President read out a list of those allowed to work during the lockdown, Lawyers were excluded yet they were supposed to be at the forefront of fighting human rights violations. Lawyers were not given stickers and were thus restricted from moving or working during the lockdown. Therefore the mandate to represent Clients during the lockdown was by implication denied whether at police or at Court. It goes without saying that a Lawyer who attempted to represent a Client during this Lock down could be arrested for working and flouting the covid 19 measures and should have been charged with “attempted murder”.
By the time the lockdown was declared, the government had not announced any measures to cushion the poor Ugandans from the effects of the lockdown. In other words, the government had without any preparation and without consulting the major stakeholders taken a decision to lockdown as opposed to a Slowdown without providing for social security interventions to protect the poor and marginalized groups.
A call was later made to good Samaritans to lend Government a hand through the Covid 19 Task Force under the office of the Prime Minister. A warning was sounded against those who would attempt to give out food to the hungry without channeling it through the task force. Those who attempted to give out food like the Hon Zaake were arrested and tortured and detained, it took the intervention of court to direct that he seeks treatment before taking plea.
It looks that our leaders had forgotten that the majority of Ugandans live by day that many prefer to call the hand to mouth mode of survival. However, the Government later came up with a plan to give food to the vulnerable Ugandans and whether these people have received it is a discussion for another day.
To the Government, all this was intended to keep the virus out of circulation and out of the country. I must say that the measures have paid off but it could be the beginning of law legal battles for Public interest lawyers, human rights defenders and those whose rights have been violated due to the covid 19 pandemic and the measures/restrictions put in place to curb the disease from spreading further.
The question that our Government has neglected to address is whether or not safety measures and guidelines against the pandemic should take precedent over our laws especially those that touch human rights. My answer is no but then this creates another question. Can human rights be respected in the face of a health threat such as covid 19? My answer is Yes. The Ministry of health has constantly said that these measures, restrictions, guidelines, safeguards and Directives were taken citing the Public Health Act. Certainly, the Constitution of the Republic of Uganda which provides for human rights takes precedent over the Public health Act.
Covid 19 Pandemic Vs Human Rights
Why should human rights be upheld in the face of a disease like covid 19 that can easily wipe out human existence?
Chapter 4 of the Constitution was intended to balance individual rights and other public interests even if they were of grave nature such as Covid 19. The words “Public interests” derives its strength in Article 43(1) of the 1995 Constitution which stipulates that, in the enjoyment of one’s rights and freedoms as prescribed in the Constitution, no person may prejudice the fundamental or other human rights and freedoms of others, or the public interest.
Thus irrespective of the public interests that may prevail or exist at any given time Article 43(2) (a-c) provides that no such interest shall permit political persecution, detention without trial or any limitation of the enjoyment of the rights and freedoms prescribed under the Constitution beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in the Constitution.
Article 46(3) envisages that an Act enacted to deal with a state of emergency would be permitted to provide for the detention of persons ‘where necessary for the purposes of dealing with the emergency’. under Article 47 of the Constitution, a person restricted or detained under a law made for the purpose of a state of emergency would have, within twenty-four hours after the commencement of the restriction or detention, to be furnished with a statement in writing specifying the grounds upon which they are restricted or detained among others. The Uganda Human Rights Commission would be required to review the case of a person any person so restricted or detained, no later than twenty-one days after the commencement of the restriction or detention; and after that, at intervals of not more than thirty days (Article 48(1)).
Why a state of emergency would have been the best option for Uganda
Our history is tainted with bad memories of impunity and serious human rights violations and that partly explains why the Framers of the 1995 Constitution in the preamble were emphatic on starting with provisions that would safeguard history from repeating itself irrespective of the future prevailing circumstances.
The President of Uganda is surrounded by legal minds within the Central Executive Committee of the NRM, in the cabinet, His legal Team attached to his office, he has the Attorney General, Solicitor General, in Parliament, Presidential advisers, he has unlimited Chief justice, the Speaker of Parliament among others.
Am pretty sure one or two of these people institutions must have advised the President to invoke Article 110 of the Constitution by declaring a state of Emergency to deal with the Covid19 pandemic without bending or breaking the existing provisions especially those that are none derogable in nature. After all, the Government is restricted under the foregoing provision to ensure that measures instituted during a state of emergency are only required to be reasonably justifiable in the circumstances.
Under Article 46(1) of the Constitution, an Act of Parliament shall not be taken to contravene the rights and freedoms guaranteed under the Constitution if that act authorizes the taking of measures that are reasonably justifiable for dealing with a state of emergency which can be premised on matters affecting Public health and safety.
For avoidance of doubt, (Article 110(1)(c) empowers the President in consultation with the Cabinet to proclaim and or take such measures which are required for securing public safety. The President would be required to cause the proclamation declaring the state of emergency to be laid before Parliament under (Article 110(3)) for approval as soon as practicable as and in any case not later than 14 days after its issuance. This option has been overtaken by events.
Fortunately, the Framers of the Constitution were able to include caps under Article 110(2) to the effect that the state of emergency would remain in existence for not more than ninety days to prevent abuse by the powers that be. By declaring a state of emergency, many wise decisions like the one the Government has taken so far would be sustainable and without fears of litigation when the covid 19 storm calms down.
Under Article 47 (i) of the Constitution, a person restricted or detained under a law made for the purpose of a state of emergency would have, within twenty-four hours after the commencement of the restriction or detention, to be furnished with a statement in writing specifying the grounds upon which they are restricted or detained.
Under Article 47 (ii) that person’s spouse or next-of-kin of or other person that the person restricted or detained may name, would have to be informed of the restriction or detention and allowed access to the person within seventy-two hours after the commencement of the restriction or detention;
Under Article 47 (iii) in not more than thirty days after the commencement of their restriction or detention, a notification would have to be published in the Gazette and in the media stating that they had been restricted or detained and giving particulars of the provisions of the law under which their restriction or detention was authorized, as well as the grounds of their restriction or detention.
Article 49 (i) provides that in every month in which there is a sitting of Parliament, the Minister responsible would have to make a report to Parliament in respect of: i) the number of persons restricted or detained under the state of emergency; and ii) actions taken in compliance with any findings of the Uganda Human Rights Commission.
Article 49(3) creates another safe guard against abuse by requiring that at the end of the emergency declared under the Constitution, any person in or under restriction, detention or custody as a result of the declaration of emergency, would have to be immediately released, unless charged with a criminal offence in a court of law. Fortunately, the constitution under Article 110(5) allows a revocation of the proclamation declaring the state of emergency by either the President or Parliament, if either of them are satisfied the circumstances which necessitated it had ceased to exist.
It is my considered view that while the decision is no longer tenable, it should have been the best option to curtail costly legal battles that will be brought against Government and individuals working for and on behalf of Government.
Rogers Wadada is a Lawyer/Politician and Researcher