Throughout a state of emergency, governments, because the duty-bearers, are allowed to quickly droop the train and pleasure of some rights. They’re additionally allowed to bypass some procedural limits to have extra of a free hand to take care of the emergency, whereas sustaining legislation and order.
However nationwide and worldwide legal guidelines set limits for governments to comply with to keep away from abuses and doable human rights violations.
Ghana has launched a variety of measures in a bid to cease the unfold of the coronavirus. These embrace quarantine and isolation of those that have the virus. Restrictions have additionally been positioned on a number of occasions, together with public and social gatherings. The nation’s borders have been shut and partial lockdowns imposed in Larger Accra, Tema, Kasoa and Larger Kumasi.
Many of those measures have been imposed underneath a brand new legislation, the Imposition of Restrictions Act, which was handed by parliament two weeks in the past. The act was opposed primarily by the parliamentarians belonging to the minority occasion.
The legislation states that “the imposition of the restriction underneath subsection (1) shall be moderately justifiable in accordance with the spirit of the Structure.”
However this isn’t the case. This is only one of quite a lot of massive issues with the brand new legislation, and the best way during which the president has gone about enacting it.
The primary is that it’s draconian and opens the door to overreach and violations of basic rights and freedoms in Ghana. Second, the president selected to not put an expiry date on when the provisions of the act will probably be lifted. Thirdly the act is common – its doesn’t point out COVID-19 as its focus. Part 7 gives solely a broad definition of “catastrophe”, which implies that any president can use it in future underneath varied circumstances.
The issue with the Act
The Imposition of Restrictions Act was enacted based mostly on a directive issued by the president on March 15 to introduce emergency measures to comprise the COVID-19 pandemic. In his speech, he directed the attorney-general to introduce “emergency laws” to that impact.
The act is “to offer for powers to impose restrictions on individuals, to present impact to paragraphs (c), (d) and (e) of clause (4) of article 21 of the Structure within the occasion of an emergency, catastrophe or related circumstance to make sure public security, public well being and safety.”
The World Well being Organisation (WHO) declared COVID-19 a pandemic and a public well being emergency of worldwide concern on 30 January. Based mostly on the WHO definition, a state of emergency exists in Ghana as in lots of different nations affected by the pandemic.
Ghana has a legislation – the Emergency Powers Act, 1994 (Act 472) – that enables it to declare a state of emergency. Its 1992 structure additionally makes provision for a state of emergency. The explanations for this embrace a public well being emergency which might set off a quarantine or isolation order. This may justify proscribing individuals’s motion.
This reveals that the president didn’t want a brand new legislation. He had all of the powers he wanted set out within the structure in addition to quite a lot of current legal guidelines to limit the motion of Ghanaians throughout a well being disaster comparable to COVID-19.
By taking these steps the federal government has gone the route of quite a lot of states which have enacted what have been described as emergency legal guidelines in response to the coronavirus pandemic, with out really declaring a state of emergency underneath legislation. Phrases comparable to “restriction”, “lockdown” and “lockout” are most popular.
The brand new act violates the structure in quite a lot of crucial methods.
The primary drawback is that it was enacted exterior the purview and management of the 1992 structure.
First, the Emergency Powers Act requires the president to seek the advice of with the Council of State, an advisory committee of eminent residents, earlier than declaring a state of emergency.
But the brand new act offers this energy to a “related individual or physique”. This opens it to abuse.
Second, parliament has the facility, underneath the structure, to revoke the declaration of a state of emergency or lengthen it for as much as three months.
Nonetheless, underneath the brand new act, this energy is reserved for the president.
Act 1012 seeks to derive its authority from article 21(4)(c) of the structure, which is proscribed to freedom of motion solely. But the act restricts the enjoyment of many different rights. Amongst them is the proper to privateness. The act grants the federal government huge powers to intercept communication and the companies of the community supplier on the disposal of the state for mass dissemination of data.
There are different protections the act does away with. For instance, the structure stipulates that an individual restricted and detained underneath a state of emergency will probably be accorded sure privileges and will probably be launched instantly after the expiration of the state of emergency.
No such privilege exists underneath the brand new act, which might have an individual incarcerated for as much as 4 years.
Flexibility is vital to take care of emergencies. Nevertheless it doesn’t justify the steps taken by Ghana’s authorities to take care of the COVID-19 emergency.
Governments typically have an uncanny need to use novel conditions or emergencies to realize political benefit. In my opinion the Imposition of Restrictions Act, 2020 lends itself to abuse as it may be utilized in quite a lot of conditions that the federal government can think about – or create.
Fionnuala Ní Aoláin, the UN Particular Rapporteur on the promotion and safety of human rights and basic freedoms, has noticed that in coping with the pandemic
emergency or not, states should attain the identical threshold of legality, legitimacy, necessity and proportionality for every measure taken.
As an alternative of in search of to guard the well being of Ghanaians and cease the coronavirus epidemic by instituting totalitarian surveillance regimes, the federal government ought to slightly concentrate on empowering residents. An empowered citizenry is well-informed and self-motivated, trusts the state and is able to suggest new social contractual phrases with the state to take care of an emergency.
This comes about the place the state is clear and accountable and in addition trusts the citizenry.