Covid-19 brings into stark relief a long-standing discourse on the role or derogations and claw-back clauses on the continent and now, more now than ever, clarity on this long-standing debate is needed.
In response to Covid-19, countries in Africa have imposed total or partial lockdowns, in the process allowing authorities to take actions necessary to safeguard national security, maintain law and order, protect citizens’ lives and property, keep essential public services working, concentrate relief resources and direct them to the areas of greatest need, and in general to restore normality.
While providing a degree of flexibility necessary to respond to the current pandemic, emergency powers, or the illusion of it, also brings significant risks, particularly those relating to human rights. Emergency powers must, therefore, be monitored scrupulously and on an ongoing basis. Yet, this requires legal certainty and clearly defined parameters regarding what is and is not permissible under the obtaining situation.
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Countries under lockdown or state of emergency, can be breading grounds for human rights infringements. In extreme cases, emergency powers can lead to their abuse through the suppression of opposition to solidify grips on the instruments of authority. Despite restrictions placed on how states ought to legally curtail rights, governments can act beyond these confines, impinging on the right to privacy, freedom of assembly and free movement, in ways that are overly excessive and disproportionate. How do we ensure that such powers do not lead to human rights violations or become the new norm?
Derogations are one of the measures by which some international human rights instruments seek to prevent the normalization of emergency powers and with it the potential for human rights abuses. The African Charter on Human and People’s Rights does not include the possibility of derogations. Yet, including derogation clauses and defining what is and is not required to justify resorting to them, enables monitoring and enforcement mechanisms to assess state compliance. For instance, if the exigencies of COVID-19 require exceptional measures and deviation from some dimensions of the full enjoyment of all human rights, then it is best to introduce those measures through a framework that entails a commitment to legality and to the full restoration of normalcy as soon as possible.
The omission of a derogation clause could mean that during the Covid-19 pandemic, the Charter will be ignored, and will not exercise a restraining influence as states opt to deviate from existing obligations in order to respond “effectively” to the pandemic. Conversely, the omission of a derogation clause could mean that the integrity of the entire African Charter remains applicable in all situations.
Derogation clauses, for some, are not measures by which states can protect human rights. Rather, they are viewed as states’ license to violate human rights as they “officially condone a deviation from pre-existing treaty commitments precisely when those commitments are most at risk of being undermined”. It is also unclear how this approach is compatible with derogation clauses under state constitutions – various constitutions permit states to derogate from human rights obligations.
In response, while omitting a general right to derogate, the African Charter does contain numerous so-called clawbacks clauses. These clauses permit, in normal circumstances, breach of an obligation for a specified number of public reasons. For instance, under article 6 of the African Charter, liberty and security of the person and freedom from arbitrary arrest are to be protected “except for reasons and conditions previously laid down by law.’
There has been concern expressed regarding the considerable margin of discretion left to individual states to enact legislation which will prescribe the conditions when individual civil and political rights may be suspended. For some, claw-back clauses permit already unwilling states to engage in wanton and routine breach of the Charter obligations using the reasons of public utility or been criticized as offering governments extensive ability to infringe on certain individual rights.
This approach supports the view that limitations such as these are especially crucial in case of emergency to hold on to human rights. They help to keep the authorities accountable and within certain limits because the crisis legislation giving new extensive powers to the executive branch can have long-lasting disproportionate effects on our lives, our freedoms and our societies. They provide a means, in the context of Africa, by which both Commission and the Court directly engage in monitoring the approaches adopted by African states in response to Covid-19.
There are competing arguments regarding the best way to approach human rights and states of emergency in Africa. Yet, the interesting nature of these debates also masks a level of ambiguity that can have significant consequences on human rights during the ongoing pandemic. Are states to follow their constitutions? International law? Regional law? Does the omission of a derogation clause enable states to forum shop?