June 9, 2020

What is the Legal Basis for Rwanda’s COVID-19 Lockdown, Curfew

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On May 23, Police paraded 20 men and women who were found in a sauna against the COVID-19 measures barring being in such places

Since March 15, cabinet imposed nationwide total lockdown, which was later modified to night curfew and a host of other measures. While all questions around the pandemic have been asked, one particular one remains hanging. No media has asked about the legality of the cabinet’s actions.

What legal instruments did cabinet use to impose the tough measures which have helped cut rate of infections in the country? The reason this is important, is because, imagine somebody went to court to challenge the COVID-19 measures, what would be response of the Justice Minister and Attorney General, who is the cabinet’s lawyer?

The legality of the cabinet’s actions has not been discussed in any form in Rwanda. But it has been been a hot debate in Parliament of Rwanda’s regional neighbors, and around the continent. The same has been in other regions.

The issue came to prominence on the continent following a strange situation in Malawi. In April, the High Court blocked the government from implementing a nationwide lockdown and the Chief Justice followed up by certifying the iasue to be reviewed in the Constitutional Court.

Since then, Malawi President Peter Mutharika has been engaged in angry exchanges with the judiciary. He accuses judges of siding with the opposition to block the lockdown, allowing for political rallies where social distancing is impossible, thereby threatening lives of millions.

In Kenya, President Uhuru Kenyatta’s government based its authority, to implement curfews and other measures, on the “Public Health Act” (PHA) and “Public Order Act” (POA). However, according to Harvard University’s “Bill of Health” journal, President Kenyatta bypassed Parliament, and they are not giving him a free pass yet.

If Kenyatta had done it the right way, he was supposed to do what is laid out in the “Statutory Instruments Act”, which requires that delegated legislation be approved by Parliament. In other words, even if the Kenyan cabinet evoked PHA and POA, they were supposed to seek parliamentary endorsement.

The Kenyan regulations have been implemented with immediate effect rendering Parliament’s interrogation into legality moot. The National Assembly has declined to approve regulations on the Prevention, Control and Suppression of COVID-19 and the Restriction of Movement of Persons and Related Measures, but the State has continued to implement them.

The Kenyan Judiciary has already taken a decision on the legality of the curfew orders, holding that curfew is lawful but finding the use of unreasonable force in its imposition unlawful. A number of cases, including one initiated by an NGO called KELIN, challenging the imposition and implementation of mandatory quarantine, are pending determination.

As for Uganda, President Yoweri Museveni has completely left Parliament out of decisions he himself announces in televised sessions aimed at controlling the pandemic. According to media reports, the President evoked the Public Health Act, dating back to colonial era in 1938, but amended in 2008.

It grants the government powers to implement measures it deems fit to control a disease outbreak in the country, including even isolating any given region if need be.

With these powers, President Museveni banned any form of political gatherings, yet elections are due early next year. In one of his lengthy televised addresses, President Museveni warned that anyone found holding a political rally or gathering people without authorisation, will be charged with murder.

Opposition politicians have grumbled in the media, accusing the President of taking advantage of the pandemic to advance himself while his possible challengers are locked at home. Not even the ruling party NRM members of Parliament are happy. Museveni has only allowed the lawmakers to look at the budgets including the loans.

Uganda’s case is similar to that of Malawi, which is due to hold a re-run of the annulled presidential poll. It would be a hot political season in Uganda by now. The difference between Malawi and Uganda, is that politicians in the latter have not gone to court.

In Rwanda, the situation has unique characteristics. First, a total lockdown was imposed on March 15. For nearly 40 days, nobody except for medical and security personne, and the media, moved. Then on May 4, a night curfew has been in place ever since. All measures are announced by cabinet after meetings chaired by President Kagame.

Hundreds of people have been arrested in different parts of the country for flouting the measures put in place. Some have been fined and freed. Vehicles impounded. Other culprits have been made to sleep in the stadium, and released next morning.

In all the cases, the culprits are paraded before the media – a tactic perhaps to dissuade others. Most recently, there is a Rwf 25,000 fine on Moto taxis that miss just one of the requirements including hand sanitizer and head cover.

In one unfortunate case in Nyanza district in the early days of the lockdown in March, two men were shot dead by police. The Force explained the incident that the victims attempted to grab a gun from the officers.

On March 27, President Kagame had first televised address, in which he urged Rwandans to be understanding of the severity of the measures, but that they were necessary. Rwanda had recorded its first cases on March 14. The President announced that help for the most vulnerable was coming in form of food and sanitary materials.

In early April, cabinet got $109.4million loan from the IMF to support the economy as it was having a hit from the closure. A few days later, another $14m loan arrived from the World Bank. Both were taken by government to respond to COVID-19.

The big elephant in the room has been; under what laws is cabinet operating? The Chronicles engaged different Deputies (Members of Parliament) and cabinet members for answers.

Without a legal basis for cabinet’s decisions, say lawyers who were unwilling to be quoted for this story, it opens avenues for possible legal challenges that may not happen today, but in future.

“For example, a person or group could go to court claiming the loans were obtained illegally by government and therefore making Rwandans repay them, was equally illegal,” said one lawyer.

For the case of the IMF and World Bank loans, cabinet did submit to Parliament the legal instruments immediately, and the loans have been ratified. So cabinet can rest assured they are safe on this.

Questions remain with the curfews, the arrests and other measures. Somebody may one day seek legal redress, claiming the government forced them to close their businesses, thereby resulting in the loss of their livelihoods. As per the government’s own admission, 60% Rwandans or 8million people have lost nearly everything during the lockdowns.

Sources have told The Chronicles that some political parties with representation in Parliament did hold internal consultations to discuss the issue as to why government was not involving Parliament in its COVID-19 response. But that, they abandoned the project when they determined that there was “no political gain” in trying to challenge cabinet.

The government’s chief lawyer, the Justice Minister and Attorney General Johnston Busingye did not respond to queries about the issue. Health Minister Dr Daniel Ngamije also didn’t respond. They received the WhatsApp messages, but did not say anything.

Since last week, while the rest of the country is slowly opening up, Rusizi district, which suddenly saw an unusual upsurge in infections, was put on total lockdown. It neighbors Bukavu, in DR Congo. Rusizi residents are all locked up inside their homes and there is security personnel at all corners.

Rubavu for its case is said to be under “restricted travel”, whereby it is not on lockdown, but no one gets in or out. Also, those inside are advised to stay and work at home but not mandatory like it is in Rusizi.

On April 10, Minister Busingye indicated that the authorities were mulling prosecuting four COVID-19 patients for putting the lives of millions at risk. It said the four had been in contact with people they knew were in hospital undergoing treatment, but they opted not to come forward.

Instead, they were traced through the government’s highly sophisticated contact tracing program involving a team of dozens working 24hours from Kigali and other regions.

“At the moment, we have three or four people whom we are investigating to establish if they intentionally did what they did, aware they were infected,” said Busingye at the time.

“No laws were put in place with the expectation that one day when Coronavirus emerges, people would be prosecuted for not declaring themselves. However, we have laws in place prescribed for people who intentionally put lives at risk, that can lead to death, or deliberately spreading an incurable disease.”

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