During a state of emergency, governments, as the duty-bearers, are allowed to temporarily suspend the exercise and enjoyment of some rights. They are also allowed to bypass some procedural limits to have more of a free hand to deal with the emergency, while maintaining law and order.
But national and international laws set limits for governments to follow to avoid abuses and possible human rights violations.
Ghana has introduced a range of measures in a bid to stop the spread of the coronavirus. These include quarantine and isolation of those who have the virus. Restrictions have also been placed on a host of events, including public and social gatherings. The country's borders have been shut and partial lockdowns imposed in Greater Accra, Tema, Kasoa and Greater Kumasi.
Many of these measures have been imposed under a new law, the Imposition of Restrictions Act , which was passed by parliament two weeks ago. The act was opposed mainly by the parliamentarians belonging to the minority party.
The law states that “the imposition of the restriction under subsection (1) shall be reasonably justifiable in accordance with the spirit of the Constitution.”
But this is not the case. This is just one of a number of big concerns with the new law, and the way in which the president has gone about enacting it.
The first is that it is draconian and opens the door to overreach and violations of fundamental rights and freedoms in Ghana. Second, the president chose not to put an expiry date on when the provisions of the act will be lifted. Thirdly the act is general – its doesn't mention COVID-19 as its focus. Section 7 provides only a broad definition of “disaster”, which means that any president can use it in future under various circumstances.
The problem with the Act
The Imposition of Restrictions Act was enacted based on a directive issued by the president on March 15 to introduce emergency measures to contain the COVID-19 pandemic. In his speech, he directed the attorney-general to introduce “emergency legislation” to that effect.
The act is “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 of an emergency, disaster or similar circumstance to ensure public safety, public health and protection.”
The World Health Organisation (WHO) declared COVID-19 a pandemic and a public health emergency of international concern on 30 January. Based on the WHO definition , a state of emergency exists in Ghana as in many other countries affected by the pandemic.
Ghana has a law – the Emergency Powers Act , 1994 (Act 472) – that allows it to declare a state of emergency. Its 1992 constitution also makes provision for a state of emergency. The reasons for this include a public health emergency which can trigger a quarantine or isolation order. This would justify restricting people's movement.
This shows that the president didn't need a new law. He had all the powers he needed set out in the constitution as well as a number of existing laws to restrict the movement of Ghanaians during a health crisis such as COVID-19.
By taking these steps the government 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. Terms such as “restriction”, “lockdown” and “lockout” are preferred.
The new act violates the constitution in a number of critical ways.
The main problem is that it was enacted outside the purview and control of the 1992 constitution .
First, the Emergency Powers Act requires the president to consult with the Council of State , an advisory committee of eminent citizens, before declaring a state of emergency.
Yet the new act gives this power to a “relevant person or body”. This opens it to abuse.
Second, parliament has the power, under the constitution, to revoke the declaration of a state of emergency or extend it for up to three months.
However, under the new act, this power is reserved for the president.
Act 1012 seeks to derive its authority from article 21(4)(c) of the constitution, which is limited to freedom of movement only. Yet the act restricts the enjoyment of many other rights. Among them is the right to privacy. The act grants the government wide powers to intercept communication and the services of the network provider at the disposal of the state for mass dissemination of information.
There are other protections the act does away with. For example, the constitution stipulates that a person restricted and detained under a state of emergency will be accorded certain privileges and will be released immediately after the expiration of the state of emergency.
No such privilege exists under the new act, which can have a person incarcerated for up to four years.
Flexibility is important to deal with emergencies. But it does not justify the steps taken by Ghana's government to deal with the COVID-19 emergency.
Governments generally have an uncanny desire to exploit novel situations or emergencies to gain political advantage. In my view the Imposition of Restrictions Act, 2020 lends itself to abuse as it can be applied in a variety of situations that the government can imagine – or create.
Fionnuala Ní Aoláin , the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, has observed that in dealing with the pandemic
emergency or not, states must reach the same threshold of legality, legitimacy, necessity and proportionality for each measure taken.
Instead of seeking to protect the health of Ghanaians and stop the coronavirus epidemic by instituting totalitarian surveillance regimes, the government 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 and accountable and also trusts the citizenry.
Kwadwo Appiagyei-Atua ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son poste universitaire.
By Kwadwo Appiagyei-Atua, Associate Professor in Law, University of Ghana