COMMENT Prof. Dr Thoko Kaime 26 February 2021
Constitutionalism, the idea that officials must necessarily be circumscribed by institutions that restrict the exercise of state power; continues to face tremendous pressure across African jurisdictions as the COVID-19 pandemic continues to ravage the Continent. As the imperative to protect lives underlines many a government’s response, it cannot be overemphasised the role that constitutionalism and the rule of law must play in providing a just framework for such responses. The Supreme Court of Malawi puts the position succinctly as they paraphrase section 12 of the Malawi Constitution:
Indeed, our Constitution is founded upon, among others, the underlying and fundamental principle that all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with the Constitution solely to serve and protect their interests.[1]
This caveat applies to all constitutional democracies on the continent. The exercise of emergency powers to rein in the pandemic must be done legitimately and ultimately for the interests of the polities of those nations.
However, months of fighting the pandemic have demonstrated just how fragile constitutionalism is: In some states where constitutionalism was strong before the pandemic, the importance of adherence to the rule of law has clearly been corroborated. But, in those where constitutionalism was but ephemeral, we have seen political elites abuse the pandemic as an opportunity to further entrench illiberal behaviour.
Entrenching the rule of law
In Botswana, government quickly assumed emergency powers intended to tackle the pandemic. The declaration of a state of emergency on 31 March 2020 was only the second time this constitutional measure had been applied. Whilst some constitutional law pundits had initially balked at the initial period of 6 months requested by the government, hindsight has ultimately proved the ultimate arbiter and shown the necessity of such a long period. What is remarkable about the Botswana case is the extent to which the government ensured that there was consultation regarding the nature and extent of any emergency measures despite the Constitution reserving powers for action in the presidency; and despite the president’s party controlling a majority of seats in the legislature. In the midst of a devastating pandemic, Botswana was busy setting benchmarks for deliberative democracy.
Refusing to be outdone, Malawi showcased the strength of its third arm of government: the judiciary and its responsibility in controlling executive action. When the government attempted to impose a 21-day lockdown without specifying how Malawians forced to be at home would access food, water and other essential items; the High Court of Malawi courts duly granted an injunction preventing the government from implementing the measure until they were reviewed by the court[2] thereby entrenching the principle that emergency is no substitute for constitutional fiat. Further, whilst the corona pandemic was in full swing, the Constitutional Court of Malawi annulled the result of the 2019 presidential elections on the grounds that the irregularities reported were so grave that it rendered nugatory the right to vote contained in the Constitution.[3] The fact that the apex court felt empowered to remove an illegitimate head of state at the height of a health crisis demonstrate the depth of constitutionalism and adherence to the rule of law.
Increasing repression
Unfortunately, far too many jurisdictions have seen massive reversals in the rule of law and allowed governments to entrench illiberal tendencies. The constitutional authority to declare states of emergencies have been abused and used to brutalise citizens.
In Tanzania, for example, the government has used emergency powers to prevent citizens from freely talking about the corona pandemic and barred health workers from sharing data and best practice on the pandemic. Local Kwanza Online TV was suspended by government regulators for 11 months for ‘unbalanced’ coverage of the pandemic as was Tanzania Daima newspaper; this after several of its reporters were banned for reporting on COVID-19.[4] As the crackdown on COVID speech accelerated, even the Tanzanian opposition parties who were initially active in promoting testing and public safety also fell silent. A general election held in the middle of the pandemic in October 2020 where campaigning by opposition was circumscribed heavily through arrests and police brutality demonstrates the opportunistic use of emergency powers to prevent democratic competition. After the vote, the ruling party and its president predictably won by a large landslide. [5]
In Uganda, the government aggressively used emergency powers granted to control the corona pandemic to ensure that President Yoweri Museveni won a sixth consecutive term in elections held in January 2021. In the run up to the vote, security forces used corona-related emergency powers to brutalise the population.[6] Scores of opposition supporters were killed by police on the basis that their gathering was breaking corona regulations. The internet was shut down for days before the vote and afterwards. It is not known how votes were tallied and transmitted to the Uganda Electoral Commission.
After Museveni was declared winner, he commented: “I think this might turn out to be the most cheating-free election since 1962,” Make of that what you will, but it does not sound like a ringing endorsement of constitutionalism and the rule of law during his multi-decades in office.
Vigilance
It is clear that it is possible to uphold constitutionalism even under the toughest of situations. The corona pandemic is one of those situations. Oversight institutions, particularly the judiciary and the legislature need to be vigilant to ensure that the executive branch does not act outside of the law under the pretext of preserving lives. The examples of Tanzania and Uganda are a stark reminder of how a government can stray from the path of constitutionalism.
[1] MSCA Constitutional Appeal No. 1 of 2020 (https://malawilii.org/mw/judgment/supreme-court-appeal/2020/1)
[2] Judicial Review Cause No. 22 of 2020 (https://perma.cc/MML4-8FNU)
[3] MSCA Constitutional Appeal No. 1 of 2020 (https://malawilii.org/mw/judgment/supreme-court-appeal/2020/1)
See Laura Radzey. November 13, 2020. Presidential Elections in Kenya and Malawi – Some Comparative Reflections – africanlegalstudies.blog
[4] Reporter without Borders. November 6, 2020. https://allafrica.com/stories/202011060664.html
[5] See Dr. Olivia Kokushubila Lwabukuna. Octovber 29, 2020. Hapa Kazi Tu! Democratic, Political and Legal Contestations in Tanzania’s 2020 Elections – africanlegalstudies.blog
[6] See Diana Kisakye. January 13, 2021. https://africanlegalstudies.blog/2021/01/13/presidential-elections-in-uganda-of-bobi-wine-and-the-struggle/; Carsten Möller. January 14, 2021. https://africanlegalstudies.blog/2021/01/14/the-rules-of-the-game-how-the-elections-in-uganda-are-won/.
