Opinionista Omphemetse S Sibanda 1 July 2020

Time for courts to be more proactive in overseeing the rights of vulnerable members of society

Perhaps the time has come for the courts to intensify their supervisory role over government — not only with regard to derelict arms of government. The notion of a transformative judiciary and decision-making requires a different approach by the courts, which can even attract the aura of politicising the judiciary.

The Covid-19 pandemic has seen various responses across the globe – social, economic, political and legal. National courts can learn much from the Inter-American Court of Human Rights (IACHR) on the appropriate role to play during pandemics.

Notable is the IACHR Resolution No. 1/2020: Pandemic and Human Rights in the Americas (Adopted by the IACHR on 10 April 2020); and the decision in the case Vélez Loor vs. Panama, which was adopted on 26 May 2020. The Vélez Loor vs. Panama decision is not only a watershed decision in the context of fighting the Covid-19 pandemic, but it could also seriously challenge the conception of judicial overreach, the “sanctity” of the conception of “judicialisation” of politics, and the efficiency governments demonstrate in protecting human rights.

More importantly, the jurisprudence from the IACHR engraves into constitutional discourse the appreciation that rights given cannot be readily taken away or chipped away, and that it remains a duty of the state to protect human rights and freedoms. 

“After all, sovereignty does not allow states to do anything they please, but conversely must be understood as requiring them to make decisions in ways that respect their commitments and duties,” writes Nicolás Carrillo-Santarelli, a Colombian lawyer and lecturer of Public International Law at the Autónoma de Madrid University. 

Is there a valuable lesson that the judiciary in South Africa can learn from the IACHR as it grapples with myriad cases relating to the Covid-19 lockdown? Can or should the Office of the Chief Justice and the Constitutional Court replicate what the IACHR did within the vulnerable communities like the Khoisan, asylum seekers and refugee protection discourse, and also with regard to people in incarceration of whatever nature generally? 

Can you imagine the Constitutional Court taking upon itself to supervise the implementation of its order, particularly in politically sensitive cases without someone crying judicial overreach and preaching the political question doctrine? 

In South Africa, Human Rights Watch has accused the government of bias and discriminatory practices in the Covid-19 food aid, and raised concerns with the South African Human Rights Commission (SAHRC) “claiming that its aid programmes, including food parcels, overlooked refugees and asylum seekers”.

If the current scholarship in South Africa regarding the extra-judicial speech of judges, particularly of Chief Justice Mogoeng Mogoeng, and the distrust expressed by commentators at the Covid-19 rulings by the courts in favour of the government persists, I cannot see a complete silence. Though our courts, particularly the Constitutional Court, have supervisory jurisdiction, particularly the Constitutional Court, the supervisory role in the manner and nature exhibited by the IACHR is surely to invite judicial overreach and accusation of encroaching the Separation of Powers Doctrine – some misguided.

Pro-traditional separation of powers doctrine construction will only understand when “the Judiciary may supervise the rectification process by the errant arm [of government]”. In all these tugs-of-war, we should always take into account an observation by the Constitutional Court in Mwelase and Others v Director-General for the Department of Rural Development and Land Reform [20 August 2019] that the courts and the government are not at odds in actualising the aspirations of our constitutional order.   

On the other continent, the IACHR did not think twice in adopting a decision to supervise the implementation measures in its judgments. The Court ordered Panama to give access to essential health services to all persons found in the “La Peñita” and “Laja Blanca” centres, and that the early detection and treatment of Covid-19 are to be included among those services.

In South Africa, Human Rights Watch has accused the government of bias and discriminatory practices in the Covid-19 food aid, and raised concerns with the South African Human Rights Commission (SAHRC) “claiming that its aid programmes, including food parcels, overlooked refugees and asylum seekers”. If one follows the example set by the IACHR, the South African judiciary, in particular the Constitutional Court, should be directed at own initiatives by the government to ensure that asylum seekers, migrants, refugees and people in detention centres have their human rights protected, and that measures are put in place to enable the enjoyment of these rights.

This kind of supervisory role over government’s implementation of the ruling of the IACHR has trickled down to national jurisdiction. Courts in some national jurisdictions have started to make it clear in their rulings to the government what to do or not to do during Covid-19.

For example,  on 18 June 2020, the Provincial Court of Pichincha forced the government of Ecuador to protect Indigenous Waorani during Covid-19 because government, to use the term in Frederick Marryat’s 1834 novel, Jacob Faithful (1834), was behaving like a “bull in a china shop” in their territory in the Amazon rainforest.

The Provincial Court of Pichincha made two important orders relating to Covid-19. The court ordered the Ministry of Health and the Ministry of Social Inclusion to (a) better communicate and coordinate with Waorani leaders to intensify Covid-19 testing with the assistance of medical staff with intercultural experience across three provinces of Pastaza, Napo, Orellana in Waorani territory, and provide sufficient/adequate food, health and other necessities to the affected communities. It (b) also ordered the Ministry of Environment and Water to furnish it with a report with detailed specifics on how it is monitoring illegal mining, logging and drug trafficking activities in the region, and to provide information on Covid-19 protocols for oil companies operating there throughout the pandemic.

The narratives are that the government ignored calls by the Waorani to put an immediate moratorium on all extractive activities in their territory, as evidence suggested that Covid-19 infections were on the rise in communities closest to oil roads and active operations. According to the Waorani leader, Nemonte Nenquimo, during the saga, extractive or mining industries were putting profits ahead of human lives amid Covid-19. 

Reading the ruling of the Provincial Court of Pichincha reminded me of the suffering and challenges experienced by our fellow citizens, the Khoisan, whose leadership has declared that Covid-19 lockdown regulations are threatening their survival and sustainability; and that no sufficient and adequate government relief measures are designated for them or filtering to them as a community. Hearing this, you begin to wonder if the Constitutional Court of South Africa should take an active role in supervising government policies and interventions to protect the Khoisan from Covid-19.

Subject to correction and risking criticism, I am of the view that the African Court on Human and Peoples’ Rights (AfCHPR) – not to forget the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and African Commission on Human and Peoples’ Rights (ACHPR) – can take a leaf from the IACHR’s book in supervising member states’ Covid-19 responses. I am aware of the 22 June 2020 “Statement of the Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, on the Celebration of African and World Refugee Day” on Covid-19. But I will not say much about it as it is only available in French

French-speaking readers of Daily Maverick will understand (google translate will also give one a good idea) the first paragraph from the statement: “La crise du Covid-19 a remis en cause notre manière de vivre et de concevoir la vie, mais elle a eu un plus grand impact sur les personnes vulnérables, telles que les réfugiés qui font partie des populations les plus marginalisées de la société, dans les réponses humanitaires au Covid-19. En effet, la crise sanitaire du Covid-19 est perçue comme une double peine pour ces personnes, dont le sort est déjà incertain et qui pour beaucoup d’entre eux vivent dans des conditions désastreuses.”  

The latest statement of the ACHPR  on 4 June 2020 also called on member states to, among others: “Provide assistance to individuals, families and communities, including vulnerable groups and at-risk groups, through at least a minimum essential level of food distribution, social welfare and other social security measures, in order to mitigate the impact of Covid-19 on their economic, social and cultural rights.”

The notion of a transformative judiciary and decision-making requires a different approach by the courts, which can even attract the aura of politicising the judiciary.

Back to the heightened supervisory role of the courts during Covid-19: By and large, the IACHR is one of the leading regional courts that has taken an effective and proactive role in Covid-19 responses. On 9 April 2020, the IACHR, for example, adopted a declaration titled “Covid-19 and Human Rights: The Problems and Challenges Must Be Addressed from a Human Rights Perspective and with Respect for International Obligations”. The declaration is aimed at dissuading and combating discrimination, racism, xenophobia and gender-based violence (GBV), particularly affecting vulnerable groups of society amid Covid-19. In this declaration, the Court stated, among others, that:

“Given the nature of the pandemic, the economic, social, cultural and environmental rights must be guaranteed, without discrimination, to every person subject to the State’s jurisdiction and, especially, to those groups that are disproportionately affected because they are in a more vulnerable situation… It is also pertinent to alert the competent organs or agencies to combat xenophobia, racism and any other form of discrimination, so that they take special care to ensure that, during the pandemic, no one encourages flare-ups of this nature with fake news or incitements to violence.”

It should be noted that the declaration is a detailed and wide-ranging framework on Covid-19. The declaration appreciates, acknowledges and highlights several challenges associated with Covid-19 and provides a way forward. Other issues addressed by the IACHR include the protection of healthcare workers, of media freedom, human rights defenders, and the legal and proportionate use of surveillance technology to monitor propagation of Covid-19.

Reports so far indicate that South African citizens and residents have, and will continue to bear the brunt of Covid-19 and government responses thereof. It is hoped that in the context of this pandemic, our judiciary should think out of the box by proactively cushioning the impact of Covid-19, like the IACHR is doing, and using the opportunity of the endless Covid-19 cases before it to issue rulings that seek to protect vulnerable members of our communities from the pandemic and government actions. 

The bottom line of this opinion, thus, can be summarised as calling for the courts to intensify their supervisory role over government; and that this should not only be with regard to derelict arms of government. The notion of a transformative judiciary and decision-making requires a different approach by the courts, which can even attract the aura of politicising the judiciary.

The late Chief Justice Pius Langa said: “Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority but by reference to ideas and values. This approach to adjudication requires an acceptance of the politics of law. There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked.”

The IACHR has shown us that this can be done in times of pandemics, without having to cry foul of judicial overreach and violation of the Doctrine of Separation of Powers. DM

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