07.04.2020 Article

The Law And The Lockdown

By Dr. King Bachiesichang
The Law And The Lockdown
07.04.2020 LISTEN

For the very first time in the history of free and independent Ghana our beloved country has essentially come to a complete standstill. With a global human architecture held in absolute terror of captivity yet confusion gasping for solutions on how to contain the deadly Coronavirus pandemic. To many, life has totally been reduced to its cradle cliffy parameters of ‘mere survival’.

In such a fast-changing dramatic twist every nation for itself now. With the World Health Organisation (WHO) at the centre of the stage declaring COVID-19 a pandemic and a public health emergency of international concern on 30 January 2020 to deal with. According to many populists world view it appears that the rules of the game have been freaking in one direction for centuries and as a result of this pandemic, another radical change is looming. But the critical questions are “what happens when no one leads the world?” Given the grave colossal damage posed by this virus leading to a two weeks partial lockdown in Ghana is a great source of worry for many. However, many well-meaning Ghanaians across the political divide have questioned the Constitutionality of such an action. At the outset, I would like to draw a distinction between the Constitutional validity of this lockdown and its attendant enforcement measures. I will also like to dwell on the law and its ramifications, whether the directives of the presidency of the Republic of Ghana are in consonance with the fundamental rights guaranteed under the Constitution and two, whether the Central government can issue such directives/guidelines when 'Public Health' is a State matter. I will equally offer potential strategies for possible containment of the pandemic.

Is the lockdown constitutionally valid?
The answer is emphatically – yes, the State has the power to bypass some procedural rules to order a temporal lockdown if it benefits the public at large during emergency situations. This is in spite of the debilitating consequences it may have in the present and future. The right to life guaranteed under the Constitution is the most sacrosanct fundamental right. Without life, there can be no liberty. Thus, it paves the way for all other rights to exist.

In Ghana the passing of the Imposition of Restrictions Act, 2020 (Act 1012), serves as one of such procedural limits of power exercised both in the context of international and local legal framework to handle the Covid – 19 pandemic which can typically be described as an emergency.

The framers of the constitution as ascribed under Article 31 (9) grants that during the emergence of natural disasters and anything that is threatening to jeopardize life such powers maybe invoked. Notably, Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR) describes emergency as a condition which “threatens the life of the nation.” Similarly both the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR) labelled situations that will cause a state of emergency to encompass a period of war, more specifically as contained in Article 27 of the African Court of Human Rights (ACHR) which states that “in time of war, public danger, or other emergencies that threatens the independence or security of a State Party.”

Sadly, the African Charter on Human and Peoples’ Right does not have a provision on state of emergency which can be leaned on. Somewhere in Article 4(1) of the ICCPR which allows States Parties, “in 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.”

Right to health is integral to the right to life. The government has a constitutional obligation to provide health facilities. Thus, the State has a positive obligation under the Constitution to swing into action in the face of a public health emergency such as the present pandemic to protect the lives of its people.

A lockdown primarily affects two of our fundamental rights: the right to move freely throughout the territory of imposed areas and the right to practice any profession, or to carry on any occupation, trade or business. These rights have been guaranteed under the 1992 constitution. However, a reading of the organic law of the land make it clear that 'reasonable restrictions' can be imposed on these rights in the interests of the general public provided it is done by a duly enacted law.

The uncertain nature of the SARS CoV-2, its ravaging spread and the absence of a vaccine is compounded by the fact that the Ministry of Health seems not to have the needed infrastructure or clear actionable plan to deal with the pandemic in war footing. A lockdown helps enforce social distancing and isolation, which is essential to contain the virus spread. China has attributed its successful recovery to its lockdown of Hubei province. While one may consider this kind of restraint on our movement and profession extreme and unprecedented, it is not in excess of what is required in the current predicament. In fact, it is necessary in the interests of the general public. Thus, the Guidelines issued under the Imposition of Restrictions Act, 2020 (Act 1012).

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 respectively.

Legal tenability of the Emergency Powers Act vs. Imposition of Restrictions Act 2020 (1012) and the lockdown

Therefore, as far as the legal tenability of the lockdown is concerned, the government’s actions maybe sound in law but the Imposition of Restrictions (Lockdown) 2020 Act 1012 is a double edge sword. The said new Act is a permanent Act and could be abused to introduce dictatorial as well as despotic actions in the future with the President usurping or ousting the power of Parliament, weakening its oversight duties. Because both legislative and judiciary powers are now vested in the hands of the president and this can be potentially dangerous if not a double edge sword.

Many people are critical about the Imposition of Restrictions Act 2020 (1012), that it’s a cover-up to make the president a dictator. under section 4(2) of Act 1012, Parliament’s function is ousted 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.” There are several questions surrounding the passage of the Act 1012, whether the Act itself is Constitutional and whether it was passed by the Parliament in its best form are still lingering issues worth jurisprudential debate? It violates article 31(1) of the Constitution and the Emergency Powers Act section 1(1) because the President is required to consult the Council of State before issuing a declaration of proclamation in a gazette during such emergency.

It violates certain aspects of international law as well under article 15(1) of the ICCPR that states that “no 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…”. According to the object of the Act 1012, Section 1, is to provide powers to give effect to paragraphs (c) (d) and (e) of Clause 4 of Article 21 of the 1992 Constitution. The three paragraphs mentioned states that under law, restrictions could be imposed on the movement or residence and entry of persons within the jurisdiction of Ghana for defence, public safety and public health. It also prohibits the teaching and propagation of doctrines which encourages disrespect for the nationhood of Ghana. Also subsection (1) of Section 2 of Act 1012 gave the powers to impose restrictions vested on the president ousting parliamentary oversight and open a leeway for dictatorship. Section 2(1) of Act 1012 states that, “The President may, acting in accordance with the advice of relevant person or body, by Executive Instrument, impose restrictions specified in paragraphs (c), (d) and (e) of clause (4) of Article 21 of the Constitution.” My question is who now check the executive powers of the president? Can this leads to a situation where an illegality will be justified and normalized? Your guess maybe as good as mine. Going by the constitution article 31(4) and resolution 31(5) parliament has the power through its majority to vote for the approval or extension or revoke the declaration of an emergency which is now ousted by the Imposition of Restrictions Act 2020 (1012). Do now see why this “lockdown” law is a bad law?

The Flaws in due process of law
The Imposition of Restrictions Act 2020 (1012) was passed in retrospect against the provisions of article 107(b) of the 1992 Constitution (except otherwise under article 182) where there is a clear prohibition on parliament from passing retrospective laws that may pose intrusions on the rights and liberties of individuals. After the president issued his directives for the imposition of restrictions it lasted 6 days for the Act 1012 to mature to become law. This among other things explain the flaws in the new law and its enforcement. According to our constitutional arrangements the new law upon its passage would have to go through additional 2 days for the president to issue an Executive Instrument in retrospect. This means that the restrictions or lockdown imposed was not backed by law between the dates it was issued on March 15, 2020 until it finally became law through Act 1012 by the Executive Instrument.

Are they massive intrusions into the rights of people?

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.

By section 6 the Imposition of the Restrictions Act 2020 (1012), the minimum punishment for flouting the lockdown announced by the president is a fine of Ghc12,000.00 or prison term of 4 years or both. Yes, the rights of people are largely intruded. That is a fact.

In recent days, we have witnessed appalling incidents across the country where the police have charged people for venturing out of their homes to buy essential items like milk and groceries, ambulance drivers, stranded migrant workers, soldier beating residents in Kasoa etc. These incidents are recorded and circulated on social media and have become a source of public humiliation, resulting in not just physical but also mental trauma for the victims.

Here, I look at the legality of the incidents of police excess against alleged violators of the lockdown. In order to understand the problem, we must first distinguish between a lockdown and curfew.

What's the Difference between a Lockdown and Curfew?

The term "lockdown" has been informally used to describe the measures announced to curb the spread of SARS CoV-19. It must be noted that it has not been officially used in the orders and notifications issued. Further, a "lockdown" is different from a "curfew". A "curfew" is usually a short-term measure requiring people to remain indoors. Essential services may also be disrupted as it requires people to be off the streets and is usually imposed to check law and order problems like riots, terror activities or insurgency.

On the other hand, a "lockdown" is a relatively long-term measure, requiring the closure of public and private establishments in order to restrict the large-scale movement of people. What distinguishes a "lockdown" from "curfew" is that essential services continue to operate in a lockdown and people may get out of their homes to access such services. Moreover, a lockdown need not relate to law and order problems only. The effect of the president directive is the imposition of a lockdown as it is for an extended period of time and essential services continue to operate.

Can the Police Use Violence to Enforce the Lockdown?

No order has been issued which explicitly makes it criminal to step out of the house. This is less so if one is rendering an essential service or has ventured out to buy essential items like medicine or food and what have you. As responsible citizens, it is our duty to ensure that we don't leave our houses. However, even if we do, we cannot be subject to the callous treatment that many have been victims of in the past few days. We live in a country plagued with illiteracy and poverty and many have been caught unaware by the sudden lockdown. The plight of the informal sector workers, head porter such Kayayeis’ who are compelled by their poverty to walk or travel back home as they cannot afford to live in the city without work, is a compelling reminder of why we must exercise compassion and not violence in this hour of crisis.

However some security forces must be commended for their remarkable efforts in maintaining law and order in a situation of extreme panic, and braving the threat of the virus by putting their personal safety at risk and turning up to work. It is some errant Police Officials or Army officers who have chosen to take the law in their own hands and strict action must be taken against them. Section 6 of the Act 1012 clearly states that a person found violating its stipulations can be charged, which provides for a fine or an imprisonment term.

Should People Be Arrested for Violating Lockdown?
However, the above mentioned provisions must be invoked cautiously, with due application of mind especially when the Government has not expressly clarified whether a single person walking on the street amounts to an offence. Consideration must be given to the fact that it is difficult for people to approach the Courts, which are currently having cases adjourned. Liberal democracy strikes a balance between two foundational principles, the 'will of the majority' and the 'rule of law', which gives primacy to individual rights. Ghana has prided itself on being one of the leading liberal democracies of the world. Our Constitutional framework may allow for individual rights to be curtailed, but they cannot be completely sacrificed at the altar of the 'will of the majority'. In the face of a public health challenge, it is all the more necessary to be vigilant about human rights, as history teaches us that the gravest human rights violations have taken place during wars, emergencies and disruptive situations. The 'majority' should be careful before applauding or normalising police excesses in the name of public interest when alternate and proportionate penalties exist.

The Restrictions Act 2020 (E.I. 63) Communications System Instrument

It amounts to intrusion of people rights and privacy as Act EI 63 gives the president exclusive powers to order Telecos to surrender data of its subscribers to the National Communications Authority NCA as under the section 100 of the Electronic Communications Act, 2008 (Act 775). These freehand powers can be abused against the will of the people or the state’s will which is not good for our democracy or it could be abused or misapplied to witch-hunt political opponents or violate people privacy as we are seeing currently in a similar instances of the closure of many radio stations across the country.

Lessons from PDA and Republic vs. Akoto and Others
The constitution is an administrative instrument and the Preventive Detention Act (PDA) and attendant landmark case of Re Akoto should warn us about granting of such freehand powers to the executive branch of government. We all agreed now that PDA was a bad law as it was in contravention of the Habeas Corpus Act and the Criminal procedures Code as well as Article 13 and 21 of the 1960 Constitution. So what lessons what we learnt from that?

Situation where a future president uses Act 1012 to manipulate elections

There may come a time where a future president uses Act 1012 to manipulate elections. For example, if an NDC President decides to impose restrictions on say the Ashanti Region on an Election Day or an NPP President imposes Restrictions on the Volta Region.

It is my fervent strategy and recommendation that the supreme court of Ghana should issue a notice of on plea for immediate relief for the poor, homeless, and all economic weaker sections of the society during this lockdown. Because the right to life and survival is a constitutional right. A severe humanitarian crisis is looming gradually if care is not taken with die economic consequences too. The pandemic has begun to creep across Africa over the past few months and is now rapidly gaining speed in some countries. There has been concern that numerous African jurisdictions with their semi-porous borders may not be capable of slowing the velocity with which the virus spreads. Government should consider measures to put the economy back on track when this whole pandemic subsides so as to avert a downturn. Creation of mass testing and isolation is highly recommended. Reawakening our scientific thinking as a nation should be a clarion call. Tech companies and industries can be assembled to develop vaccines for Covid -19 as a Ghanaian success story. It’s possible together!