By Ibrahim Sorie Koroma
On Thursday January 30 2020, following the outbreak of the new coronavirus in China, the World Health Organization (WHO) declared the rapid spread of the disease as a global health emergency; a rear designation given to disease threats that pose an international risk. The virus has been linked to the hypothesis of animal-to-human transmission in Wuhan, a city of 11 million people in Hubie Province which first reported the disease on 31st December 2019.
Since the adoption of the International Health Regulations which govern global health emergency response, this was only the sixth time the organization has done so. Over two months ago and before the declaration, Tedros Adhanom Ghebreyesus, the head of the WHO said, “Over the past few weeks, we have witnessed the emergence of a previously unknown pathogen which has escalated into an unprecedented outbreak.” Just a week earlier, his organization had maintained that it was too hasty to make a formal declaration of “public health emergency of international concern” or PHEIC and he himself tweeted in mild tone “@WHO is working closely with all countries to control the #coronarirus outbreak. Person-to-person transmission has been seen in at least 3 countries outside #China- Japan, Vietnam and Germany- and the cooperation and info sharing has been very good.” When the virus reached 18 countries, Ghereyesus called on all nations to “work together now to limit the spread”, framing the declaration as a precautionary measure while also flagging WHO’s concern over the potential damage the virus could do in countries with weaker health systems and calling on the international community to help.
The organization announced $675 million emergency preparedness and response plan on 5th February to cover through April. Just as individual nations do, the WHO uses its emergency declarations as a political tool to draw attention to the seriousness of the virus that has caught the world off-guard, putting people’s heath in danger. It will use that to galvanize a coordinated response and resources to stop the spread.
Thus, emergency powers must seek to protect life and every part of the health care system, and allow people to fight coronavirus with everything available including suspending rights and privileges. It has been suggested that one of the reasons WHO paused before triggering a PHEIC, was the economic fallout international attention a disease threat can bring. The estimated losses caused by the SARS outbreak in 2003, according to Reuters, was a staggering $40billion.The COVID-19 is projected to cost the world $2.7 Trillion according to Orlik, Rush, Cousin and Hong.
Africa is the continent health workers are most worried about. Experts say that the virus could cripple the continent’s fragile healthcare system with devastating economic consequences. The WHO head of programs in Africa, Dr Matshidiso Deso said this week that most of the continent’s confirmed cases were from Europe but with limited community transmission so far: that although there is limited testing, and there maybe undetected infections, “we don’t think these are very large in number.” At the time of writing, 49 of the 54 African countries had confirmed the presence of the virus, with South Africa recording over 900 – the highest so far on the continent. With the underlying challenges of malaria, yellow-fever, cholera, tuberculosis and HIV and Aids, Africa is already a potentially dangerous ground with an estimated 350 million people already with compromised immune systems without a chance against COVID-19 and without health coverage. The magic word for the coronavirus is “testing,” and the experiences of the Ebola outbreak which resulted in nearly 21% GDP loss between 2014 and 2016, should put Sierra Leone in a relatively better position to deal with COVID-19.
As at March 24, Sierra Leone stood among 11 African countries without a confirmed case of COVID-19, but few days earlier, following the spread of the virus to neighboring Guinea and Liberia, President Julius Maada Bio imposed a raft of measures aimed at abating the possibility of transmission into and spread around the country which did not include a lockdown. On 24th of March 2020, the President also announced a state of “Public Emergency” without a lockdown and the nation was immediately thrown into a shockwave; not because of the proclamation (which was in fact much anticipated), but for its duration of 12months. From an authority derived from Section 29(1) of the Constitution of Sierra Leone, President Bio said “I… President of the Republic of Sierra Leone, Supreme Head of State, Grand Commander of the Order of the Republic and Commander-in-Chief of the Armed Forces of Sierra Leone… do hereby, by this proclamation, declare that a state of Public Emergency exist in the whole of Sierra Leone with effect from today the 24th day of March 2020 for a period of twelve months …”
Some proponents of the public emergency including civil society groups were riled by this lengthy potential suspension of the rule of law and immediately connected it to several political undercurrents gearing up prior to the outbreak. Whereas people may not out rightly be in disagreement with the proclamation, some are livid that a year is too long to empower the President with the discretion to suspend the operation of law. To suggest it in itself is a deadbeat on the ailing nation whose sociopolitical and economic fragilities have rattled the country’s fabric to the core. It will appear that the declaration is a measure of demonstrable political agility that the country is not taking any chances with this pandemic at a time when over half of the world’s population is under some form of lockdown according to CNN, and when approximately 35,200 people have died, and counting, since the outbreak.
The President noted “I have directed the military to immediately deploy to our international airports and land crossing points in order to enhance security and support compliance with all public health directives advisories.”
For a moment, this looks like a gloss in the Constitution and an expeditious approach to national responsibility. The proclamation of a State of Public Emergency would inevitable make the President “supreme” but there is no law which endows the President of Sierra Leone the title of “Supreme Head of State” as the President did arrogate to himself by this proclamation.
The President is bestowed with “Supreme Executive Authority” which, to all intents and purposes, does not amount to infusing the presidency or the President for that matter, with supremacy in Sierra Leone. The authority of the President, however, is constitutionally supreme {under the law} as long as he enjoys the mandate of the people on whom sovereignty resides as prescribed in section 5. (2) a of the Constitution as follow: 5.(2)a. “Sovereignty belongs to the people of Sierra Leone from whom Government through {this} Constitution derives all its powers, authority and legitimacy.”
The President himself is not supreme in Sierra Leone because he could be removed from office by the people directly or by their representatives in Parliament and held culpable for wrongdoing after his term of office. Therefore, the use of the phraseology “Supreme Head of State” in a declaration of a state of Public Emergency is sufficient to send chill down the cheeks of Sierra Leoneans who have become accustomed to the principles of democratic governance and constitutional protection. Such an aberration on the constitutional order, without prejudice to the provisions of section 29 of the Constitution, is a misconception of limits of state power and the underlying spirit of the Constitution of Sierra Leone which gives the President such “Supreme Executive Authority.”
The nature of the President’s “Supreme Executive Authority” is encapsulated in the spirit of the Constitution itself that such authority over and above any other Sierra Leonean, to declare a state of Public Emergency, declare war and lead national troops as Commander-in-chief, leader of all constitutional matters and foreign relations, to enter into agreements and execute international treaties on behalf of the state, serve as Fountain of Honour and Justice and as the symbol of National Unity and Sovereignty etc., are all mutually exclusive to himself only during service for two five (5) year terms at most.
The Constitution is not a living document; it has no life so it must be interpreted the way it was originally intended not as a matter of individual convenience or circumstance. That it could be treated as a living being and adjustable is another misconception. Further, the president’s own choice of words created even more dilution of the facts and intent portrayed by the proclamation. Certainly, a proclamation of public emergency ‘suo moto’ even when preceded or followed by an explanation of reason, could well and justifiable create a misconception of intent in a post-conflict country like Sierra Leone. When the President deliberately, or otherwise, omitted the word “health” to precede the word ‘‘emergency,” it created suspicion in the minds of other people. For example, the Public Notice No. 42 of 2020 in Vol. CXLXI of Thursday March 24th 2020, as a supplement to the Sierra Leone gazette, gave notice of a presidential proclamation of “Public Health Emergency” which was widely discussed as incoherent with the proclamation itself. It was muted that the proclamation was too wide and intended to be used as political tool of oppression. By Press Release date 26th March 2020, the main Opposition All People’s Congress agitatedly summed up the atmosphere in these words: “We note with dismay the coincidence of declaring a State of Emergency in a corona virus-free country only to be followed the next day by the submission of the flawed COI Summary Report. We consider this as a deliberate ploy by the Establishment to unleash undue mayhem on the opposition. The frequent unconstitutional arrests and detention of opposition members over the last two years lend credence to our suspicion.” Whether or not this was intended in fact, it is only the traumatized mind that wiggles at a time when all coincidence surely appears as the product of masterful calculous with a feel-good effect.
It must be highlighted, notwithstanding, that the President of Sierra Leone has the “Supreme Executive Authority” to lead in times of crisis and to make and enforce regulations during a state of emergency although such regulations may be inconsistent with established rules except the Constitution, if he considers those, based on the prevailing circumstances, to be in the interest of the general public. He cannot however make rules that may be applied to the trial of any person who is not enlisted in the defense force, by military tribunal.
This “Supreme Executive Authority” shall not be inquired into by any court or tribunal. He also does not however bear the powers to enforce the rules until the people, through their representatives in Parliament, by resolution, agree to their reasonability and expediency. It is another misconception to hold that the President can fix the time at twelve (12) months or that in his wisdom, he can hold or extend a proclamation of state of emergency as he pleases. Whereas the President is solely authorized to make the proclamation, it is solely the purview of Parliament to limit the period of a state of emergency in Sierra Leone beyond seven (7) days or twenty-one (21) days as the case maybe. Further, any regulations made as stated above, can only survive for ninety (90) days unless before its expiration, it has been approved by resolution passed by Parliament. Such resolution shall survive for not more than twelve (12) months.
At the outbreak of a pandemic, the emergency powers help the government to mobilize quickly and activate a menu of powers that they can use to respond to a crisis situation. “They allow expedited response efforts in ways that don’t circumvent constitutional protection” says James Hodge, director of the Centre of Public Health Law and Policy at Arizona State University. “It lets people say, we have to quarantine 100 people right now, we’ll do that.” Actions available to the government might vary, but they can include the ability to require people to isolate or quarantine, school or event shutdowns, and curfews. Government might let medical professionals who are licensed in other places practice there or allow healthcare volunteers to handle low-level medical tasks under the supervision of a doctor. A state might take all or none of these steps: they are just some of the options available and in the case of public health emergency, the ministry of health should be in charge.
Eighteen years after the civil war, Sierra Leone’s economy is still tottering and the population enduring years of Ebola epidemic and a string of mudslides between 2013 and 2017. The country is an import-driven nation mainly dependent on Chinese goods and food. Some have warned that a lockdown in a country like Sierra Leone will be more disastrous than the virus to people who must go out in order to eat. Clearly, whereas countries like South Korea, China, Spain, Italy and UK can afford a complete lockdown, the President’s emergency powers will be unreasonable and inexpedient at this time, should he pronounce a lengthy lockdown. The trauma of war, deceases, poverty and violent politics seems to undermine the dividend of public emergency powers in the face of a monstrous COVID-19. This pandemic has brought its own toll again in March – the month that is remembered by many for the start of the bloody civil war.
Ibrahim Sorie Koroma is the Head of the Law firm, M.S. Turay & Associates in Freetown and CEO of the consulting Firm MARC-G. He specializes in Energy, Natural Resources Law and Public Policy.
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