The Pan African Lawyers Union has released a commentary on the implications of COVID-19 pandemic in Africa

In the commentary which was made available to TheNigeriaLawyer (TNL), the Union said the pandemic has already touched the personal, social and professional lives of lawyers, and those of their families and loved ones.

The commentary is divided into six sections each commencing with a brief synopsis of what is happening on the ground, and then ending with our evolving recommendations. The sections are: –
1. Measures at the Pan African Lawyers Union (PALU)
2. Measures taken by lawyers’ associations , law firms and individual lawyers
3. Measures taken by national governments across Africa
4. Measures taken by Regional Economic Communities (RECs) and Regional Organisations (ROs) in Africa
5. Measures taken by the African Union (AU) and other continental-level bodies
6. Emphasizing the importance of the rule of law and human and peoples’ rights in situations of emergency

Read the full details below:

We write to you as we all confront the dire consequences of an unprecedented global pandemic unleashed by the Severe Acute Respiratory Syndrome Coronavirus-2 (SARS-CoV-2), which causes the Novel Coronavirus Disease, often referred to as COVID-19. As lawyers, it has already touched our personal, social and professional lives, and those of our families and loved ones. The full impact that it will have on our societies, polities and economies is not yet known, as the pandemic and the multiple crises it has spawned and is spawning are still unfolding. We pray for all the affected countries and populations, throughout the world.

While the COVID-19 was initially slow to manifest itself in Africa, over the last month, confirmed cases have shot up across the continent. In its most recent update, issued on Tuesday 7th April 2020, the African Centres for Disease Control and Prevention (Africa CDC), had chronicled that 52 out of the 55 African countries have reported a total of 10,086 positive cases, which have occasioned 418 deaths and 915 recovery cases. Out of these 52 Member States that have reported cases, 41 have local transmission and 9 have imported cases only. Thus far: –

  • The hardest hit Member State is the Republic of South Africa, with 1,686 cases;
  • The hardest hit region has been Northern Africa, with 4,485 confirmed cases, 362 deaths and 437 recoveries. This is followed by Southern Africa, with 1,798 confirmed cases, 17 deaths and 59 recoveries. Third is Western Africa, with 1,992 confirmed cases, 57 deaths and 348 recoveries. Fourth is Central Africa, with 950 confirmed cases, 33 deaths and 34 recoveries. Fifth is Eastern Africa, with 861 confirmed cases, 18 deaths and 37 recoveries.

We do not yet have consolidated, credible statistics for the effects of COVID-19 on Africa’s vast and diverse diaspora. We are also very conscious that, in the absence of widespread testing, these figures belie a much higher rate of infection within our communities and countries.

The PALU leadership has been in constant contact, formally and informally, with the leadership of the legal profession across the continent, at national and regional levels. We have maintained the same constant communication with the leadership of the African Union (AU) and with sister institutions, at governmental, inter-governmental and non-governmental levels. We applaud and encourage the measures currently deployed by the AU, Africa CDC and national governments, as well as private sector, civil society and community leaders, some of which we summarize below.

Nevertheless, we also point out that, when looked at cumulatively, encompassing the continent, the measures to date are insufficient, in light of the dire threats that we face, as a people and as a continent. We therefore call for more robust, comprehensive, region-wide, continent-wide and globally coordinated measures.

This Commentary will speak to the HOW of achieving coordinated measures on the African Continent among PALU members, Lawyers’ Associations, National Governments, Regional Economic Communities (RECs) and Regional Organisations (ROs), African Union (AU) and additional Continental-Level Bodies, Human Rights Mechanisms among others.

There are six sections to this Commentary, each commencing with a brief synopsis of what is happening on the ground, and then ending with our evolving recommendations. We conclude with a call for a more robust, comprehensive, region-wide, continent-wide and globally coordinated measures. The sections are: –

  1. Measures at the Pan African Lawyers Union (PALU)
  2. Measures taken by lawyers’ associations[1], law firms and individual lawyers
  3. Measures taken by national governments across Africa
  4. Measures taken by Regional Economic Communities (RECs) and Regional Organisations (ROs) in Africa
  5. Measures taken by the African Union (AU) and other continental-level bodies
  6. Emphasizing the importance of the rule of law and human and peoples’ rights in situations of emergency

The overall purpose of this Commentary is to contribute to the discourse about the Implications of COVID-19 in Africa, and to solidify the basis for working with the institutions identified to implement the evolving recommendations. We emphasize that this Commentary is a beginning document, to facilitate dialogue, and we remain open for critiques as well as proposed solutions.

  • Measures at the Pan African Lawyers Union (PALU)

At PALU, we have operationalised a range of measures to limit the risks to our employees, members, other stakeholders and their families. Like most African Civil Society Organisations (CSOs), our funding has been affected severely. We are mitigating this severity by contributing our expert knowledge on rule of law, human and peoples’ rights and national emergency measures.

Whereas we are hopeful that Africa, and the rest of the world, will have turned the tide on the COVID-19 crisis in the next few weeks, we bear in mind that our societies, polities and economies (including our law firms and other enterprises) will need some time to recover. The PALU Executive Committee has therefore taken the proactive step to postpone our Annual Conference, which will now be held from 23 – 26 September 2020. The venue remains Arusha, in the United Republic of Tanzania.

We have encouraged the PALU Secretariat leadership to arrange online training programmes to equip and assist the staff team with knowledge, skills and resources for this new way of working remotely. We are also exploring organising for members online meetings and webinars, so that we can remain as responsive as possible to the needs of our members and the legal fraternity at large.

We will continue to review and strengthen these measures, as the context may demand, and we welcome a continuing dialogue with members and stakeholders.

Our directives, currently being implemented at our Secretariat, are: –

  1. Adhere to the work-from-home policy;
  2. Deploy enhanced cleaning and hygiene procedures at our Secretariat office, and limit walk-in visitors to the most essential, such as maintenance of core office infrastructure;
  3. Cancel all planned meetings and events, until at least the end of April 2020. We will therefore neither organise nor take part in any physical meetings at this time. We will review this directive from time to time, taking account of the then situation on the continent and globally;
  4. Encourage the staff team and our Members’ Committees, Task Forces and Working Groups to work more collaboratively online, using existing electronic communication tools such as BlueJeans, GoToMeeting, Microsoft TEAMS, Skype, Zoom, etc and also social media;
  5. Cancel all non-essential travel;
  6. Adhere to all containment and mitigation regulations and guidelines set by the host government.
  • Measures taken by lawyers’ associations[2], law firms and individual lawyers

Many lawyers’ associations, law firms and individual lawyers have taken measures, such as completely shutting down their offices, operationalising work-from-home or electronic working policies, limiting or completely stopping walk-in visitors or clients, etc. They have minimised appearances before Courts, Arbitrators, Mediators, etc to only the most essential actors i.e. the key clients and the key lawyers handling a particular matter. They have loosened the strict requirements for physical service of pleadings and other documents, and are extending courtesies to each other, to accept electronic or courier service. Some have done so voluntarily, while others have been as a result of broader governmental measures.

Some lawyers’ associations and law firms have moved quickly to issue written advisories or offer online seminars (webinars) on various issues touching on COVID-19, including projections on its potential impact on law firms, legal practice or on the broader society, polity and economy. Some have begun giving advice to citizens, corporations, law firms or individual lawyers on how to better prepare or cope with the disruptions we are likely to continue facing for the foreseeable future.

We reiterate that we are maintaining and expanding an on-going conversation with the leadership of lawyers’ associations and exploring, within our current context and resources, how best to sustain support for our institutional and individual members, and the communities that we serve. We also welcome input from members, and from the general public, including suggestions on what more we should be doing.

Our evolving recommendations to our member institutions are that: –

  1. Review the measures being implemented by your respective governments to assess whether they are adequate, in view of the situation in your specific countries and regions;
  2. Assess the measures being implemented with the lens of the rule of law and protection and promotion of human and peoples’ rights (this is elaborated on further below);
  3. Proactively assist your respective governments in formulating well-thought out and lawful measures that respond to the context of your countries or regions, within the lens of the rule of law and human and peoples’ rights (this is elaborated on further below);
  4. In particular, proactively engage the Judiciary and other institutions in the administration of justice to explore innovative ways in which essential justice services can be sustained during this difficult period;
  5. Engage, alone or in partnership with other actors, in robust Information, Education and Communication (IEC) campaigns to educate the general public on the COVID-19 crisis, to disseminate lawful directives by governing authorities and to remind citizens that they have both rights as well as responsibilities, even during a state of (medical) emergency;
  6. Provide advisories or commentaries on topical legal issues;
  7. Speak out boldly, and also act, when there are violations of the rule of law or human or peoples’ rights and offer representation for those adversely affected. This may include public interest litigation, when it is warranted;
  8. Where possible and plausible, support government and other stakeholders in corporate social responsibility (CSR) or other charitable activities such as kitties meant to aid the vulnerable members of the society.
  • Measures taken by national governments across Africa
  • Measures to stem the proliferation of COVID-19

Many governments have begun taking meek or robust measures to prevent the spread of COVID-19 in their respective countries. This has included appointing or designating national emergency response committees or other forms of multi-agency coordinating fora; engaging in Information, Education and Communication (IEC) campaigns targeting the public; decreeing total ‘lockdowns’ or other forms of restrictions on movement, assembly, association, social interactions or business enterprise (‘physical distancing’) in order to limit the drastic proliferation of infections (often referred to as ‘flattening the curve’ of infections); encouraging or requiring enhanced hand-washing, cleaning and other personal hygiene measures, etc. This has included voluntary or mandatory quarantining or isolation of persons that have recently travelled from areas exhibiting high rates of infection, or that have been exposed to confirmed or suspected cases of COVID-19 infection.

Some governments, at national, devolved or decentralised levels, have begun enhancing their public health systems and infrastructure, to be able to cope with the projected increased rate of COVID-19 infections and the inevitable strain that it would place on their already inadequate or insufficient facilities, including in maintaining service to those persons who would routinely require other medical services or who live with other medical conditions. This has included designating COVID-19 sections in existing hospitals, clinics or other medical facilities; establishing temporary medical facilities; increasing Intensive Care Units (ICUs) and critical care units in these medical facilities; procuring Ventilators and other essential equipment; recruiting new permanent or temporary medical staff; enhancing training for existing medical staff; procuring personal protective equipment (PPEs) for medical personnel;  etc.

We urge all PALU members and their families to diligently comply with all lawful guidelines issued by our respective governments and lead by example in these trying times.

Our evolving recommendations to those governments (and to our member institutions to engage those governments with) are that: –

  1. Dealing with a pandemic is a governance issue, rather than simply a health Therefore, it requires a timely, proactive, whole-of-government approach, with hands-on and visible leadership from the very top;
  2. Citizens, across countries, regions, continents and globally, deserve and demand visible leadership from the very top of government, as well as constant, truthful and comprehensive communication, including on what is the baseline (health) infrastructure; the plans that government is laying out to rapidly scale these up; and the milestones towards achieving these;
  3. In terms of Information, Education and Communication (IEC), governments or other actors should ensure that these are contextualised and customised for local audiences. In many countries, IEC structures already existed for dealing with HIV-AIDS, Tuberculosis, etc which can be easily adapted for engaging on COVID-19;
  4. National Emergency Response Committees ought to be representative of society and not limited to government Ministries, Departments and Agencies (MDAs). The leadership of other sectors of society (social, faith-based, corporate, etc) ought to be represented in these structures, so that the ideas, needs, fears, concerns and challenges of all of society find their way to the decision-making table, and to two-way communications between the citizens and the decision-makers;
  5. The urge to deploy the ‘full force of the law’ ought to be resisted; instead, governments should prioritise a free, prior and informed dialogue and consent with the citizens, so that the measures decreed or taken have popular support, rather than the brutality of our infamous police and security services;
  6. Decision-makers (in the public and private sphere) need to be very conscious of the lived reality of the majority of African people, for whom ‘physical distancing’ and ‘working from home’ as is currently being propagated is NOT a practical reality, and for whom ‘government’ has, perennially, been a tormentor, rather than a source of succour or a provider of services. While we live in dire times, several positive, practical and pragmatic potential solutions are being proposed, which should find their way into mainstream policy, strategy and actions. It is especially important to take on board the views of the vulnerable and marginalised peoples’ themselves, as they often have clear ideas of what would work in their circumstances;
  7. Decision-makers (in the public and private sphere) also ought to bear in mind that our populations are not uniform, and ‘one-size-fits-all’ policies or communications do not do justice for a country. Therefore, policies and messaging ought to be tailor-made to suit different parts and demographics of the population;
  8. There is need to have a proper legislation that acts as a guideline in terms of how such a pandemic should be handled.

Observations and recommendations touching on rule of law; human and peoples’ rights; regional, continental and global approaches are addressed below.

  • Measures taken by institutions for the administration of justice

A number of organs or institutions in the chain of administration of justice have been proactive in rolling out strategies or measures to maintain some continuity of services in these difficult times. Some Judiciaries have been proactive in enacting or amending Rules of Procedure, Practice Notes or Guides, or administrative (or even ad hoc) measures to facilitate electronic filing, hearing, adjudication and/ or rendering of Decisions in cases. Some have pronounced measures to prioritise cases, based on their determination of importance or urgency of certain matters. Some Judiciaries have taken measures to hold restricted physical Hearings, leaving out – for the time being – the general public; and limiting such physical interactions to the persons deemed most crucial to a case, i.e. the actual litigants and their immediate counsel. We have received reports of Judiciaries, Police Forces or Prisons engaging in proactive measures to release persons suspected or convicted of petty or minor offences, or senior citizens, to reduce congestion (and the associated risks) in our police stations, prisons or places of long-term or temporary detention. We have also received reports of Police Forces engaging in more thoughtful process of police arrest or detention and more robust police procedures.

An emerging good practice seems to be joint decision-making by Sector-Wide Approaches (SWAPs) in the administration of justice sector, which bring together the leadership of all the key actors in the chain of administration of justice, including the Judiciary; Ministry of Justice; Ministry of Public Service; Ministry of Gender, Women’s and/ or Youth and/ or Children’s Affairs; Ministries of Labour, Environment and Land; Attorney General; Director of Public Prosecutions; Directorate of Criminal Investigations; the Police Service; the Prisons; Probation and after-care services; Witness Protection Agency; the Bar Association/ Law Society; legal aid and civil society organisations; and the private sector. We appreciate that decisions made by such bodies, in (and beyond) the context of the COVID-19 challenge, are better placed to generate a more comprehensive and accurate response to the unprecedented challenges that we face, across the continent and the world.

However, we have also seen multiple, deplorable instances of manifestly excessive use of force on hapless civilians by police, military and other security services. We condemn these in the strongest terms, and we remind the governments and security services that handling a major pandemic, similar to handling other significant issues that confront a State, is best done by dialogue and persuasion, and not by ‘breaking the law to enforce the law.’

Our evolving recommendations to these agencies (and to our member institutions to engage these agencies) are that: –

  1. All three arms of government (Judiciary, Legislature and Executive) must find ways of maintaining their respective essential services during these times;
  2. While the key organs for the administration of justice certainly cannot operate as though it is ‘business as usual’, they ought to confer with stakeholders, coordinate measures, and ensure that the most essential services are sustained, including through the use of appropriate technologies;
  3. All actors, including legal practitioners, are encouraged to adopt flexibility and extend courtesies to the Courts, other institutions for the administration of justice and to each other, to ensure that the ends of substantive justice are met without undue regard to procedural technicalities;
  4. All actors are encouraged to resort to alternative dispute resolution (ADR) options, such as arbitration, mediation, conciliation, etc, such that only the most grave disputes find their way into the priority Cause Lists of our Courts and tribunals at this time;
  5. Courts, in particular, should consider issuing Practice Directions that allow video conferencing options to ensure that rights of citizens especially under criminal justice to safeguard rights to bail and habeas corpus.
  6. Courts, in particular, should consider more lenient or flexible Execution orders against Judgment debtors, bearing in mind the unique circumstances that most people find themselves in;
  7. Governments should consider expedited payment of pending Court Awards and refunds of bail, where appropriate, to out money in the hands of citizens and business enterprises;
  8. Governments should publish and disseminate detailed guidelines to govern how the Police and Security Forces should engage citizens, while carrying out their roles in responding to the COVID-19 pandemic.
  • Measures to sustain the economy in the context, and to support the most vulnerable in our societies

Some governments have begun taking meek or robust measures to anticipate and mitigate the eventual effect of COVID-19 in their respective countries’ economies, and on their people. Some have applied fiscal or monetary stimulus plans. Many have applied tax reliefs, cuts to various taxes, or have extended deadlines in which corporations or citizens have to pay their taxes or file tax returns. Some have taken up or deferred payments of utilities; or engaged banks and financial institutions to apply moratoriums or give extensions for the payments of loans, mortgage instalments, insurance premiums, etc. Some have set up Provident Funds, for providing cash to citizens or supporting businesses or organisations to be able to continue paying salaries to their employees. Some have rolled out plans to provide food items directly to vulnerable citizens’ homes and communities. We commend and encourage these measures.

We emphasize that special care must be given to fashion policies and measures that are responsive to the lived African realities, especially that most citizens work in the informal sector and do not have regular salaries, and only survive on daily wages or proceeds from informal, micro or small enterprises.

Our evolving recommendations to governments and other actors in this space (and to our member institutions to engage these agencies) are to: –

  1. Contextualise their measures to suit the lived realities of their own people, which is best achieved by directly engaging and involving the said people in the design of measures;
  2. Identify the most vulnerable members in the society and ensure that they get basic and essential needs from the government;
  3. Quickly roll out measures such as Provident, Solidarity or Lifeline Funds, that ensure that the most vulnerable sections of our society are sustained;
  4. Robustly engage a wide range of stakeholders, including civil society, the private sector, etc in the design and implementation of these measures;
  5. Have clear policies that give guidelines on how the people can get tax reliefs and to what extent the same should be done during a pandemic;
  6. Establish a Micro, Small and Medium Enterprises (MSME) safety net fund that can come to the aid of struggling small and medium enterprises that are badly hit during a pandemic;
  7. Recapitalise government institutions in order to reduce lending rates for long- and short-term business and individual development loans;
  8. Offer tax holidays to local companies that are offering health services and manufacturing essential products like sanitizers, personal protective equipment (PPEs) etc, to make them affordable to the citizens.
  9. Something about clear budgetary allocations and transparency?
  • Measures taken by Regional Economic Communities (RECs) and Regional Organisations (ROs) in Africa

It is manifest that un-coordinated, individual country-level responses to this global pandemic will not be effective. Our societies and economies are too closely intertwined, and most of our borders cannot be successfully shut down. Very many of our communities are spread across two or more international borders, and no government has the capacity to totally stop people from moving, even if it wished to. Our cross-border trade and transit links are essential to our survival, especially for the landlocked countries. Our production capacities depend on region-wide supply and value chains, and these will be even more necessary for us to locally (regionally) manufacture essential products to deal with the COVID-19 pandemic, since other parts of the world will also prioritise the survival of their own citizens before allowing exports of essential products.

We acknowledge that a number of RECs or other ROs have recently held video conferences at Head of State or Ministerial level, and issued broad statements of intent. Some have designated their health departments or specialised agencies to lead in driving coordination and assistance at the regional level. While a number of them had formulated Regional Contingency Plans for Epidemics and other events of public health concern, we are not sure, at the moment, whether these are being implemented, or whether governments are innovating as they go along. We invite our member institutions, and civil society at large, to focus on this particular issue.

Our evolving recommendations to these agencies (and to our member institutions to engage these agencies) are that the RECs should: –

  1. Establish inter-departmental COVID-19 Response Teams, within the Secretariats of any RECs that have not yet done so. These teams should incorporate, or at least consult and involve, their key regional CSO and private sector counterparts;
  2. Consider establishing regional Call Centres to respond to various COVID-19 challenges as they arise;
  3. Formulate guidelines and templates that can assist Partner States as they formulate and continuously revise their national COVID-19 response measures;
  4. Assist Partner States to coordinate and harmonise their COVID-19 responses to the extent possible, so that, for instance, citizens are not confronted with a situation where one side of a border is closed while the other is not;
  5. Even where Partner States have resolved to close their borders to human traffic, to consider common measures to ensure that cargo, especially essential goods, can continue to move across borders (with the appropriate safety measures in place);
  6. Establish comprehensive COVID-19 containment strategies, including isolation or quarantine facilities at all border crossings;
  7. Where possible, provide that these border offices operate for 24 hours, in order to expedite crossing and minimise crowding, which defeats the purpose of physical distancing;
  8. Where backlogs may have developed (for instance of cargo trucks waiting to cross an international border), put in place special measures to expeditiously clear these backlogs;
  9. In light of the above, consider whether to establish cross-border COVID-19 Response Teams at each border;

In this regard, countries that had implemented the One-Stop Border Posts (OSBPs) seem to have a distinct advantage of harnessing economies of scale and working together. Going forward, all RECs should prioritise policies and strategies for having OSBPs at all key border crossings across the continent.

  1. Engage Development Partners, initiate Donor Roundtables, brief them periodically and explore coordinated funding to the REC and to Partner States;
  2. Convene regular meetings (by tele-conference) of the relevant organs of the REC, including the Heads of State, Ministers, specialised agencies that are involved in the COVID-19 response, etc;
  3. Regularly brief the citizens on the latest developments and prospects.
  4. Undertake joint research and also share research outputs on various aspects of the pandemic, including testing, treatment, vaccines, etc. RECs that already had specialised agencies for health, scientific research, etc are well placed to use these.
  • Measures taken by the African Union (AU) and other continental-level bodies

AU organs and institutions have taken some strong measures in the context of responding to the COVID-19 crisis. We appreciate that much more needs to be done, and that financing, especially for the Africa CDC, is a continuing challenge.

At the 33rd Ordinary Assembly of the AU, held in Addis Ababa, Ethiopia (February 2020), African Heads of State and Government endorsed the African Common Position on Antimicrobial Resistance Control. The African Common Position calls on AU Member States, RECs and the AUC to develop policies and programmes to improve monitoring, delay emergence, limit transmission, and mitigate harm from antimicrobial resistant organisms. It calls on Member States to finance interventions and train personnel to prevent and control antimicrobial resistance.

On 22 February 2020, the Chairperson of the AUC, H.E. Moussa Faki Mahamat, convened a High-Level Meeting of African Health Ministers on a Continent-Wide Response to the COVID-19 Outbreak. Amongst other things, meeting endorsed the ‘Africa Joint Continental Strategy for COVID-19 Outbreak’’.

The said Strategy provides for an: –

  1. Africa Task Force for Coronavirus (AFTCOR), chaired by the Director of the Africa CDC, Dr John Nkengasong, and which builds upon the existing regional structure of Africa to support Member States. Each of the five Regional Economic Communities of Africa has an Africa CDC Regional Collaborating Center (RCC) that is tasked with implementing continent-wide public health strategies in Member States with due consideration of the different capacity, systems and priorities in those regions.
  2. Africa CDC’s Incident Management System (IMS), which had been activated earlier, on 27 January 2020, to implement all activities that Africa CDC is directly responsible for. The IMS is supported by the African Volunteer Health Corps (AVoHC), a continental resource for surge staffing during public health emergencies.

The Africa CDC, though its IMS, has been giving regular, comprehensive updates to the public, on the trajectory of COVID-19 in Africa and advice to Member State governments on the range of measures that should be taken. It has also organised several training activities (physical and online) for personnel from Member State governments, on testing, reporting and management of COVID-19 in Africa.

On 17 March 2020, the Chairperson of the African Union Commission (AUC), H.E. Mr. Moussa Faki Mahamat, published an organisation-wide Memorandum, which, amongst other things: –

  1. Established an Inter-Departmental Task Force to continuously review the impact of the COVID-19 crisis on the day-to-day operations of the AUC and to lead in formulating the response and ensuring a state of preparedness;
  2. Operationalised a physical distancing and work-from-home policy, requiring Commissioners and Heads of Organs, Agencies, Missions, Directorates, Departments and Divisions to identify only the most essential staff, who would access offices on the basis of rosters, on a rotational basis, and to report on these directly to the Offices of the Chairperson and Deputy Chairperson;
  3. Directed the above officers to formulate rules as well as accountability frameworks for the work-from-home policy.

On 26 March 2020, the Chairperson of the AU Assembly, H.E. President Matamela Cyril Ramaphosa of the Republic of South Africa, convened a meeting of the Bureau of the AU Assembly, by way of a tele-Conference. The Bureau is chaired by President Ramaphosa (Southern Africa) and consists of Presidents Ibrahim Boubacar KeĂŻta (Mali, Western Africa); Uhuru Muigai Kenyatta (Kenya, Eastern Africa); FĂŠlix Tshisekedi (Democratic Republic of Congo, Central Africa); and Abdel Fattah el-Sisi (Arab Republic of Egypt, Northern Africa). The AUC Chairperson, Mr Moussa Faki Mahamat, and the Africa CDC Director, Dr. John Nkengasong, also participated in the teleconference.

The Bureau issued a Communique and amongst other things: –

  1. Agreed to establish a continental anti-COVID-19 Fund to which the Member States of the Bureau agreed to immediately contribute US $ 12.5 million as seed funding;
  2. Noting the critical role of the Africa CDC, and its under-funding, the Member States of the Bureau agreed to contribute an amount of US $ 4.5 million towards boosting the capacity of the CDC;
  3. Addressing themselves to the G20 countries, the Bureau urged the latter to, among other things, provide an effective economic stimulus package for Africa that includes relief and deferred payments; and further called for the waiver of all interest payments on bilateral and multilateral debt, and the possible extension of the waiver to the medium term, in order to provide immediate fiscal space and liquidity to governments;
  4. Addressing themselves to the World Bank, International Monetary Fund (IMF), African Development Bank (AfDB) and other regional institutions, the Bureau urged these institutions to use all the instruments available in their arsenal to help mitigate against the scourge and provide relief to vital sectors of African economies and communities.

On 3rd April 2020, the Bureau held a follow-up tele-conference meeting, and included Presidents Paul Kagame (Rwanda), Macky Sall (Senegal), Emmerson Mnangagwa (Zimbabwe) and Prime Minister Abiy Ahmed of the Federal Republic of Ethiopia. The Bureau received presentations from Dr Tedros Adhanom Ghebreyesus, Director General of the WHO; Dr John Nkengasong, Director of Africa CDC; and President Emmanuel Macron of France. Amongst other things the Bureau: –

  1. Underscored the need for a comprehensive and coordinated continental approach, and to speak with one voice on Africa’s priorities;
  2. Agreed to establish continental ministerial coordination committees on Health, Finance and Transport to coordinate support for the Africa Joint Continental Strategy for COVID-19 Outbreak;
  3. Echoed the call for a comprehensive stimulus package for Africa, including, deferred payments, the immediate suspension of interest payments on Africa’s external public and private debt in order to create fiscal space for Covid-19 response measures;
  4. Reiterated the call for the immediate lifting of all economic sanctions imposed on Sudan and Zimbabwe, to allow them to adequately respond to the pandemic and save lives;
  5. Noted that the Sahel region need special attention in the light of terrorist activity, and

pledged solidarity with the countries in this region who have to fight the twin scourge of terrorism and COVID-19.

Meanwhile, both the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights adjourned their respective Sessions early, to reduce risks to officers, staff and stakeholders of the respective institutions. The African Commission on Human and Peoples’ Rights issued comprehensive Statements on human rights-based, effective responses to COVID-19 virus in Africa, on 28th February and 24th March 2020 respectively.

The African Development Bank (AfDB) has: –

  1. Unveiled a COVID-19 Response Facility that will mobilise up to US $ 10 billion, to assist regional member countries in fighting the pandemic. The Facility will be the institution’s primary channel for addressing the crisis;
  2. Approved a US $ 10 million equity investment in Razorite Healthcare Africa Fund 1 (RHAF1) to help improve healthcare infrastructure delivery across the continent, by providing growth capital to operating healthcare infrastructure facilities which show high potential for growth, as well as build new facilities, where identified as necessary;
  3. Provided US $ 2 million in emergency assistance for the WHO to reinforce its capacity to help African countries contain the COVID-19 pandemic and mitigate its impacts.

Our evolving recommendations to the AU and Member States (and to our member institutions to engage these agencies) are that they should: –

  1. The Bureau of the Assembly of the AU to continue to provide visible and practical leadership to the continent’s efforts, and to explore organising a virtual Extraordinary Summit of the Assembly, so that binding decisions can be made;
  2. The AU Permanent Representatives’ Committee (PRC) should convene regularly, preferably weekly, to coordinate two-way information between the Member States and AU Organs and Institutions, and, if found necessary, establish an ad hoc Sub-Committee specifically to respond to the COVID-19 crisis;
  3. Expedite operationalisation of the African Continental Free Trade Area (AfCFTA), and to prioritise supply and value chains for items necessary for combatting the COVID-19 crisis;
  4. The key institutions of the African Human Rights System (AHRS) should formulate and widely publicise guidelines on how they will conduct their work virtually, in case there would be urgent need to resort to them to preserve the AU Shared Values instruments at this time. These include the African Court on Human and Peoples’ Rights; African Commission on Human and Peoples’ Rights; African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and the African Peer Review Mechanism (APRM);
  5. The Pan African Parliament (PAP) should also convene virtually to provide oversight and advice to measures being taken at the continental level, and especially on two important issues: –
    1. Expeditious operationalisation of the African Continental Free Trade Area (AfCFTA), and prioritisation of supply and value chains for items necessary for combatting the COVID-19 crisis;
    2. Engaging the international community on a comprehensive stimulus package for Africa, including, deferred payments, the immediate suspension of interest payments on Africa’s external public and private debt in order to create fiscal space for Covid-19 response measures.
  6. Is the AU Humanitarian body created last year effective?
  • Emphasizing the importance of the rule of law and human and peoples’ rights in situations of emergency

Many countries have taken the measures referred to above on the basis of their public health laws, disaster management laws, etc. Some countries have invoked states of emergency as provided for in their respective national Constitutions. Some countries have indicated clearly which legal bases they are applying; yet some have not done so, merely issuing directives, guidelines, communiques or press statements, which are then broadcast or circulated on traditional or social media. There is the temptation to argue that, in a serious global emergency such as that in which we find ourselves, it is much more important to ‘take action’ rather than to take ‘additional’ time to couch it in ‘legal niceties!’ Nothing could be more erroneous or dangerous, in the short, medium or long term! Our countries invest in establishing and maintaining Offices of Attorneys General, Ministries of Justice, Holders of the Seals of Republics, Legislative Drafting Offices and Legal Advisors embedded in various Ministries, Departments and Agencies (MDAs) for precisely this reason, i.e. to ensure that all decisions made, even in emergencies, conform to national constitutions and laws, and international standards agreed upon by the same sovereign States.

International law, at the level of the UN, AU, the RECs, and also national Constitutions and subsidiary laws, emphasize that the rule of law is not suspended, even in a state of emergency.

The African Commission on Human and Peoples’ Rights (AComHPR), in its Statement on human rights based effective response to the novel COVID-19 virus in Africa, issued on 24th March 2020, has, among other things: –

  1. Emphasised the obligation of States to ensure that the measures adopted comply with the principle of legality, are necessary and proportional to the objective of safeguarding public health, and are accompanied by contextually tailored policy measures for mitigating the adverse impacts, particularly on the most vulnerable sections of society;
  2. Underscored the unique feature of the African Charter on Human and Peoples’ Rights (African Charter) which enshrines not only rights but also the duties of individuals towards family, society, the State and other legally recognized communities and the international community, and reiterated Article 27(2) of the African Charter, that the rights and freedoms enshrined in the African Charter shall be exercised with due regard to the rights of others and common interest.

In the light of challenges that have emerged in responding to the novel coronavirus and recognizing the need for enabling States Parties to effectively discharge their human rights obligations under the African Charter in responding to COVID-19, the African Commission has laid out 12 key principles that States Parties must comply with: –

  1. The principle of legality;
  2. Non-discrimination and equality;
  3. Access to information;
  4. Primacy of timely preventive and containment measures and ensuring decisive implementation of such measures;
  5. Addressing challenges of non-implementation and compliance;
  6. Protection of vulnerable groups, including the categories of people at greater risk of severe sickness and even loss of their lives, notably older persons and others with weak immunity due to underlying health conditions; and also that States Parties design and implement their preventive and containment measures in a way that ensures that people living in poverty, homeless people, internally displaced persons, asylum seekers, refugees and migrants are protected and benefit from the prevention and containment measures.

The measures have also to be gender sensitive having regard to the conditions of women and girls within the framework of the Protocol to the African Charter on the Rights of Women (Maputo Protocol) and are designed and implemented having regard to the needs of persons with disabilities.

  1. Prisons and other places of detention, especially reducing congestion and prioritising early or temporary release or rehabilitation in all appropriate cases;
  2. The right to health, on the basis of full equality of citizens, and including the rights ofhealth workers;
  3. Solidarity and duty of individuals, where they specifically highlight the role of the youth,Political leaders, the private sector, community leaders, opinion leaders, the media and religious institutions;
  4. Respect for human and peoples’ rights during application of public health emergency measures, emphasizing that, while applying the public health prevention and containment measures, States should ensure that resultant restriction of rights are narrowly defined and are in proportion to the requirements of achieving the objective of preventing and containing the spread of the virus, subject to supervision by courts.

Further that these restrictions should be temporary and should expire upon the achievement of the objectives of prevention and containment of the spread of the virus. The restrictions on rights should not in their application have disproportionate impact on vulnerable groups including precarious workers, people operating in the informal sector, persons with disabilities, homeless people and small businesses;

  1. Mitigation measures, such as those listed in section 3.0 of this Commentary;
  2. Monitoring, investigation and corrective measures, whereby States should set up effective and efficient systems to monitor the measures adopted and to take corrective measures and undertake investigation in cases of allegations of violations of human and peoples’ rights.

Our evolving recommendations to governments and other actors in this space (and to our member institutions to engage these agencies) are that: –

  1. Ensure that governments are operating within the principle of legality, i.e. that they adhere to an existing law or Parliament enacts a specific law or laws to deal with the COVID-19 crisis. The measures for prevention and containment should be prepared after public participation and consultations; be declared to the public, published in official gazette and disseminated widely;
  2. Ensure that human and peoples’ rights are protected during implementation of the public health, prevention and containment measures;
  3. Be prepared to challenge any laws, rules, regulations or measures that violate the above principles or that violate their national constitutions or laws;
  4. Be especially vigilant to ensure that mischievous governments or leaders do not use the COVID-19 crisis to unlawfully extend their powers or tenures, or further erode rights or civic space;
  5. Guard against the vice of corruption during implementation of the public health, prevention and containment measures.
  • Conclusion

We invite all entities specified above to continuously stay informed and engaged, seek all relevant information at all times, and restrain from disseminating false or unverified information, to limit fear and possible panic. We recommend also that we seek information from only the most credible sources, including Africa CDC, WHO and the official agencies designated to speak for national governments and the RECs.

We also echo the advice given by Africa CDC, WHO and others who have encouraged us to take this opportunity to prioritise our physical, mental, spiritual and social health. Celebrate the time you get to spend with your loved ones, and with yourself. To the best of your ability, eat healthily, reduce or eliminate alcoholic intake and engage in physical exercise. Take the time to pray or meditate; read a book; watch good movies or documentaries; clear up your home; learn or practise a hobby or skill. And keep looking out for each other, and ensure that no one is left behind.

In Solidarity,

Chief Emeka J. P. Obegolu

President, Pan African Lawyers Union (PALU)

Issues to add into the draft

  1. AComHPR and ACERWC have mandate …
  2. AU Permanent Representatives Committee (PRC): what can they contribute?

[1] PALU uses the term ‘lawyers’ association’ broadly to incorporate Bar Associations as well as Law Societies. In certain instances, it can include lawyers’ associations that are neither the national nor the regulatory body, such as human rights lawyers’ associations, women lawyers’ associations, regional branches of the national lawyers’ associations, or other specialist or regional lawyers’ associations.

[2] PALU uses the term ‘lawyers’ association’ broadly to incorporate Bar Associations as well as Law Societies. In certain instances, it can include lawyers’ associations that are neither the national nor the regulatory body, such as human rights lawyers associations, women lawyers’ associations, regional branches of the national lawyers’ associations, or other specialist or regional lawyers’ associations.

"Exciting news! TheNigeriaLawyer is now on WhatsApp Channels 🚀 Subscribe today by clicking the link and stay updated with the latest legal insights!" Click here! ....................................................................................................................... Unauthorized use and/or duplication of this material and other digital content on this website, in whole or in part, without express and written permission from TheNigeriaLawyer, is strictly prohibited _________________________________________________________________
“Evidence Act: Complete Annotation” by renowned legal experts Sanni & Etti.
Available now for NGN 35,000 at ASC Publications, 10, Boyle Street, Onikan, Lagos. Beside High Court, TBS. Email publications@ayindesanni.com or WhatsApp +2347056667384. Purchase Link: https://paystack.com/buy/evidence-act-complete-annotation _________________________________________________________________

NIALS' Compendia Series: Your One-Stop Solution For Navigating Nigerian Laws (2004-2023)

Email: info@nials.edu.ng, tugomak@yahoo.co.uk, Contact: For Inquiry and information, kindly contact, NIALS Director of Marketing: +2348074128732, +2348100363602.