The COVID-19 global pandemic presents novel challenges and grave threats to health, human life, the rule of law and constitutional governance. Governments and individual citizens are encountering new pressures occasioned by the need to fight the pandemic whilst ensuring access to essential services and basic commodities. In several Southern African countries, the response to the pandemic has taken the form of national and localized restrictions and/or recommendations.
These are often accompanied by regulatory measures suspending economic activities, enforcing social distancing and controlling national entry and exit. This has led to tension between the need for a healthcare response on the one hand and fundamental freedoms on the other, with courts called upon to decide which will reign supreme. In Malawi, an order for a national lockdown was also found unconstitutional1 and the Gauteng High Court also made a similar finding in South Africa.
The threats to constitutional norms have the potential to cause irreparable harm to constitutional governance. Further, the suspension of civil liberties has a disproportionate effect on detained persons, the poor and other marginalized and vulnerable populations. This policy brief focuses on law enforcement as emergency measures have increased the law-making powers of the executive and heightened the potential for abuse of power by the police. It seeks to prevent democratic backsliding and the fortification of police states under the guise of a public health response. The brief is informed by regional and international standards on pre-trial rights in the context of a public emergency. It treats the COVID-19 pandemic as both a health and constitutional crisis and seeks to ensure that governments place special emphasis on vulnerable groups and key populations through people-centered responses to the pandemic.