In my capacity as co-chair of the African Think Tank on HIV, Health and Social Justice, convened by UNAIDS and as president of Africa Judges Forum on HIV, TB and Human Rights, convened by the United Nations Development Programme (UNDP), I have come to appreciate the centrality of human rights in dealing with health disasters, and the role of an informed judiciary in addressing the human rights challenges arising from such pandemics.

I have learnt that it is in times of crisis that rights matter most, especially the rights of the most marginalised and vulnerable sections of our population – the ordinary workers, women, children, the disabled, prisoners, the hungry and powerless. Our courts are required by these extraordinary circumstances to be on guard and super vigilant to ensure that the rights of the people are not violated in a manner that is not justifiable in a democratic society.

In adjudicating over these matters the courts must ensure that they don’t violate the separation of powers doctrine by substituting themselves for the executive that has a constitutional duty to run the country. The executive in turn must appreciate that the pronouncement on the position of the law is emphatically the province of the courts.

International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Human rights law also recognises that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis, are reasonably justifiable in a democratic society, based on scientific evidence and are neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.

Covid-19 immediately has an impact on the right to life and dignity, which are the most important rights, as all other rights arise therefrom. There can therefore be no doubt that Covid-19, its scale and severity, justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement.

Under international human rights law, which most countries have adopted, everyone has the right to “the highest attainable standard of physical and mental health”. Governments are quite plainly obligated to take effective steps for the “prevention, treatment and control of epidemic, occupational and other diseases”.

The right to health requires that health facilities, goods, and services should be:

• Available in sufficient quantity;
• Accessible to everyone without discrimination, and affordable for all, even marginalised groups;
• Acceptable, meaning respectful of medical ethics and culturally appropriate; and
• Scientifically and medically appropriate and of good quality.

The Siracusa Principles, adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee General Comments (here and here⁾ on state of emergencies and freedom of movement, permit governments to restrict rights in so far as such restrictions may be necessary.

It is particularly important that a State of Emergency, if required, needs to be limited in duration and any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalised groups. And States of Emergency should not be abused to target particular groups, minorities, or individuals. They should not be used as an excuse for repressive action under the guise of protecting health and should not be used simply to suffocate dissent.

The Siracusa Principles specifically state that restrictions should, at a minimum, be:

• Provided for and carried out in accordance with the law;
• Directed toward a legitimate objective of general interest;
• Strictly necessary in a democratic society to achieve the objective;
• The least intrusive and restrictive available to reach the objective;
• Based on scientific evidence and neither arbitrary nor discriminatory in application; and
• Of limited duration, respectful of human dignity, and subject to review.

In a number of countries, governments have failed to uphold the right to freedom of expression, taking actions against journalists and protesters in a manner that is high-handed, disproportionate and plainly unlawful.

Many countries have resorted to quarantines, lockdowns of varying severity and travel bans in an attempt to contain the pandemic. There is nothing wrong in principle against such measures. Each country must take measures as best suit its circumstances to fight the pandemic.

Governments should ensure that quarantines and lockdowns of indeterminate length are avoided as they rarely meet the required criteria articulated above. The people are generally entitled to know what the government is planning to do for them and the basis of their analysis so that they may input into the national plan.

Most governments, especially in Africa and other developing countries, do not avail sufficient information to the public beyond the statistics. It is imperative, in a democracy, that the government must be transparent on the evidence at their disposal and advance reasons why they think a particular cause of action is the best under the circumstances. They should also share with the general public any resource constraints they may have.

Every country is unique and governments must avoid a “cut and paste” approach that doesn’t factor the unique circumstances of each country.

For instance, certain approaches adopted in advanced countries are not automatically applicable in Africa. There are differences in culture, social structure and health inequities that must be taken into account. Governments should avoid sweeping and overly broad restrictions on movement and personal liberty, and only move towards mandatory restrictions when scientifically warranted and necessary and when mechanisms for support of those affected can be ensured.

When quarantines or lockdowns are imposed, governments are obligated to ensure access to food, water, healthcare, especially to the vulnerable sections of the population such as the sick, the poor and the elderly. Case studies from other countries have shown that it is only when governments partners with civil society and churches that delivery of some of the services mentioned above can be effected quickly, when needed, and efficiently.

Covid-19, like other infectious diseases, poses a higher risk to populations that live in close proximity to each other. And it disproportionately affects older people and individuals with underlying illnesses such as cardiovascular disease, diabetes, chronic respiratory disease, and hypertension. This risk is particularly acute in places of detention, such as prisons.

In the fight against Covid-19, the protection of health workers is paramount. As part of the right to health, the International Covenant Economic Social and Cultural Rights (ICESCR) provides that governments should create conditions that “would assure to all, medical service and medical attention in the event of sickness.”  International human rights law imposes a duty on governments to minimise the risk of occupational accidents and diseases including by ensuring that workers have health information and adequate protective clothing and equipment. This means providing health workers and others involved in the Covid-19 response with appropriate training in infection control and with appropriate protective gear.

Advancing the right to education in the era of Covid-19 is problematic as it requires a fine balance between the right to life and education. As a result of Covid-19 many governments across the globe have closed schools, disrupting the learning and education of students.

In many countries, teachers already use online learning platforms to complement normal contact hours in classrooms for homework, classroom exercises, and other related activities. Online learning is an excellent idea, but we should be mindful that in some communities families may not have adequate internet access.

It is therefore important that governments should adopt mitigation strategies, for example by working with teachers, parents, students, school officials, and teachers’ unions and associations to factor in plans to recover teaching or contact hours lost, adjusting school calendars and exam schedules. It is particularly important that before schools open all key stakeholders must be involved and parents’ concerns about their children’s safety in particular are addressed. At the very minimum, schools must have clean running water, and functioning and hygienic bathrooms. Sanitisers and school premises must be frequently disinfected and thoroughly cleaned.

There is one last point I want to address. It relates to the disproportionate impact of pandemics on women and girls. Outbreaks of diseases often have gendered impacts. Research has established that the 2014 Ebola outbreak and the 2015-2016 outbreak of the mosquito-borne Zika virus in Brazil had particularly harmful impacts on women and girls and reinforced long-standing gender inequity.

It is entirely possible that over-burdened health systems, experiencing shortages of essential medical supplies, may fail to serve the health requirements of women and girls adequately. For instance, women’s access to contraception and pre- and post-natal and birth care may be compromised.

It is important that governments should carefully monitor this gendered impact with a view to taking steps to mitigate adverse consequences that may arise and ensure that responses do not perpetuate gender inequity. For instance when, as is now common, education moves online, governments and education providers should monitor participation and retention of students in online courses for a gendered impact and be in a position to respond appropriately to retain and re-engage women and girls if their participation falls off.

The Covid-19 crisis has reinforced the strong view I hold that Botswana’s Constitution is overdue for fundamental review with a view to clearly prescribing how to deal with national disasters and States of Emergency, and entrenching socio-economic rights, such as the right to food, shelter and water – all of which have been shown to be critical in fighting Covid 19.

In conclusion, I cannot overemphasise the primacy of human rights in our approach if we are to defeat this virus. It is also fair to say that given the official records of the prevalence of Covid-19, Botswana is not doing badly. It is plain that timeous lockdown, social distancing and other measures recommended by science have worked well for us, so far.

Going forward we need to seriously consider mass testing so that we can have some credible idea on where we stand in terms of prevalence while at the same time ramping up our state of preparedness in case things take a nasty turn. DM/MC