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Monday, June 21, 2021

The use of emergency powers in response to COVID-19 in The Gambia

Impact on Human Rights

The declaration of states of public emergency gives the state sweeping emergency powers, which have the consequent likelihood of curtailment of the enjoyment of fundamental human rights. While the government has the right under law to take drastic measures to protect the population from the pandemic, it should not be seen as an open-ended tool to suspend individual rights. Striking a balance between individual rights and freedoms against the public interest is challenging. Section 35 of the Constitution makes provision for derogations from fundamental rights and freedoms under public emergency powers. It provides that an Act of the National Assembly may authorize reasonably justified measures to deal with the situation during a state of public emergency. There is no enumeration of non-derogable rights, though the right to free trial is partially non-derogable (section 24 (5)-(8)).

Given the nature of COVID-19 measures, several rights have been impacted including the freedom of movement, freedom of assembly and association, and freedom of expression, right to health, and access to justice.

Freedom of expression and assembly

COVID-19-related restrictions have impacted on section 25(1)(a) of the 1997 Constitution, which protects freedom of expression, which includes protection of the freedom of the press and the media. While these rights are not absolute and are subject to lawful limitations under sections 25(4) and 209 of the Constitution, there have been incidents that have unreasonably limited such rights. For example, on 21 June 2020, officers of Gambia’s anti-crime police unit detained Ebou Keita, an editor and camera operator with the privately-owned Gambian Talents Television broadcaster, for photographing police arresting people who protested against the country’s COVID-19 restrictions. Protests have also been largely restricted. For instance, the Gambian police “temporarily” banned a demonstration planned in June 2020 in front of the U.S. Embassy in Banjul to protest police violence in the United States, after the deaths of George Floyd in Minneapolis and a Gambian national near Atlanta.

Right to health

The Gambia already had a fragile health system before the pandemic that has been further strained by COVID-19 thereby leading to barriers in accessing healthcare services. This is more so for women accessing reproductive health services. In a series of national dialogues organized by The Gambia office of Westminster Foundation for Democracy (WFD) under the theme: “Learning from Gambia’s response to COVID-19: Lessons, Successes and Challenges”, participants highlighted specific negative consequences for marginalized groups due to COVID-19 response measures. As COVID-19 deepens gender inequalities, women and girls are disproportionately affected by the adverse effects of the pandemic. For example, it was noted that some private health facilities had temporarily shut their doors to taking care of reproductive health issues during COVID-19. In public health facilities, priority was given to COVID-19 related services, as some women needing reproductive health care were allegedly turned away.

COVID-19 disrupted essential sexual and reproductive health services in an already weak health system. The disruption of services coupled with the fear of contracting the virus at the health facilities faced by women patients, led to an increase in at home-births. Women were unable to get the adequate and efficient delivery and postnatal care services they needed. It has been reported that maternal death have increased during the pandemic in more visible ways leading to a protest dubbed “Gambian Women’s Lives Matter”, which saw hundreds of people marching over the “alarming rate” of maternal mortality. In brief, there are numerous consequences of COVID-19 response measures to which marginalized groups are particularly vulnerable.

Right to liberty

Since the COVID-19 outbreak, the right to liberty as guaranteed in section 19 of the 1997 Constitution was restricted. Limitations of people’s liberties were prominent due to the enforcement of the states of emergency regulations and measures. In March 2020, at least three Imams were arrested in Kanifing Municipality, West Coast, and Lower River Regions for violating COVID-19 regulations. In April 2020, the WANEP National Early Warning System (NEWS) documented that 30 people were arrested in the North Bank region for performing congregational prayers in violation of the emergency regulations. Similar arrests were made throughout the COVID-19 restrictions particularly when a curfew was introduced to contain the further spread of the virus. While these arrests related to the curfew might have been justifiable, underlying factors that exacerbated the situation were not considered. For instance, the nightly curfew came with high demand for public transportation, which resulted in individuals not being able to travel home before the time of the curfew. Commercial vehicles were also required by the government to use half of  their capacity. Thus, fewer spaces and higher demand meant that certain groups such as women and persons with disabilities were at a higher risk of flouting such rules. In addition, in the majority of police stations, there are no separate detention facilities for men and women, thereby increasing the vulnerability of women and girls. The capacity issue of detention facilities and prisons was also a key challenge. On one hand, where large numbers of people are arrested, police stations cannot house them, and on the other hand, placing individuals in open-air centers such as stadiums overnight without any protective clothing in the chilly weather would be unpleasant. Through the intervention of the National Human Rights Commission, the President used his Prerogative of Mercy powers to pardon some 115 prisoners serving various prison terms, in the effort to decongest the prisons.

2021 outlook

The COVID-19 pandemic brought the world to a halt and a public health emergency in many countries including The Gambia. While recognizing the need for the state to safeguard public interest and rights to life, health, and safety, this does not give government a license to put aside their obligations to uphold fundamental rights and liberties. Given ongoing response measures to curb the spread of COVID-19, the Gambian government needs to strike the right balance between the protection of public health and the protection of individual rights and freedoms.

As noted above, there is a need for the state to pay attention to underlying determinants and burdens associated with adopted measures including loss of income, privacy, stigmatization, and discrimination. This is essential to limit the impact of the restrictions and hence allow for greater enjoyment of rights. It is imperative that in efforts to ensure an effective response to the COVID-19 pandemic the government works closely with non-state actors including the private sector, civil society organizations, and opinion and religious leaders to promote and model positive behaviors of prevention and containment measures.

It is equally important for the parliament to provide oversight and accountability for measures and procedural compliance given the potential for prolonged misuse or abuse of emergency powers. This is essential to uphold democracy, human rights, and the rule of law. As Gambians get ready to go to the Presidential polls in December 2021, there is an urgent need for government to maintain a delicate balance of addressing the COVID-19 pandemic while preserving human rights and maintaining democratic principles.

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