‘Covid restrictions illegal’

As government imposes regulations outside legal bounds

KANANELO BOLOETSE

MASERU – The current state of emergency is illegal since it was not approved by the two Houses of parliament in line with the Constitution, a prominent member of the opposition AD has said.

“Parliament has not approved any declaration of emergency. There is no state of emergency in Lesotho that was approved by parliament,” Thuso Litjobo, a member of parliament for the opposition Alliance of Democrats (AD), said in an exclusive interview with Public Eye today.

The government fabricated a disaster-induced state of emergency which it has been using as the basis for imposing the intrusive public health regulations which restrict several fundamental freedoms protected by the constitution, Public Eye has heard.

Public Eye’s efforts to get a government’s legal notice announcing “disaster-induced state of emergency declared by Prime Minister” on which the public health regulations are premised, were unsuccessful. Government has deployed police and soldiers to enforce the regulations.

The presence of the police and army on the streets to enforce the controversial regulations has led to some challenges, including perceptions of bias, disproportionate use of force, and other human rights issues.

In other countries, before promulgation of regulations which are more demanding and intrusive, and before imposing standards and rules that demand particular kinds of conduct from the members of the society, the public is consulted in the decision-making process.

Public participation minimises the space for irrational and arbitrary regulations. And a transparent and open process promotes the legitimacy and acceptance of the regulations which, in turn, assists the government with enforcement of the regulations.

But in Lesotho, interested and affected parties have said they were not allowed to submit their views and present relevant facts and evidence before a hard lockdown was imposed in January. Late last month, five street vendors dragged the government to High Court over its decision to prohibit them from trading during the 14-day total lockdown.

The lockdown was implemented nationwide by Prime Minister Majoro from January 13 to 27, because COVID-19 positive cases and related deaths had been accelerating after the Christmas holidays.

It was extended by seven days to February 3. The High Court will deliver a judgment on February 24. Titled Public Health (COVID-19) (Risk Determination and Mitigation Measures) regulations, and made by the Minister of Health, the regulations limit people’s movement, which curtails the constitutional right of personal liberty and restricts constitutional freedom of movement.

They also prohibit social and family gatherings, which is a violation of freedom of peaceful assembly, while also limiting religious gatherings which unconstitutionally restricts freedom of conscience.

“In exercise of the powers conferred on me under Sections 16, 17, 18, 38 and 43 of the Public Health Act, 1970, and in respect of the disaster-induced state of emergency declared by the Right Honourable the Prime Minister under Sections 3 and 15 of the Disaster Management Act, 1997, against COVID-19 pandemic…,” reads preamble of the regulations.

However, this publication has found that Lesotho is not in a “disaster-induced state of emergency” and that the preamble of the Public Health (COVID-19) (Risk Determination and Mitigation Measures) regulations is not only misleading but it also incorrect.

The most recent regulations were made by Motlatsi Maqelepo before he was removed from the Ministry of Health and redeployed to the Ministry of Forestry and Land Reclamation.

The new Minister of Health, Semano Sekatla, was in a meeting yesterday when Public Eye contacted him. This publication wanted Sekatle to indicate clearly the date on which the “disaster-induced state of emergency” was declared and the date on which it expires. Prime Minister Dr Moeketsi Majoro’s spokesperson, Buda Moseme, said it was former Prime Minister Motsoahae Thabane “who declared the state of emergency on COVID-19 in March 2020”.

The Disaster Management Act gives the prime minister, under Section 3, power to declare a State of Disaster (SOD) not a State of Emergency (SOE). Section 15(b) of the same Act gives the board of the Disaster Management Authority (DMA) power to advise the Prime Minister, through the Minister responsible for DMA, on the requirements for and the timing of a declaration of a disaster-induced emergency “in accordance with the constitution”.

The state of emergency and state of disaster are different concepts. State of emergency has its legal authority in Section 23 of the constitution. The constitution provides that a state of emergency may be declared in time of war or other public emergency which threatens the life of the nation. It states that the prime minister may, acting in accordance with the advice of the Council of State by proclamation which shall be published in the Gazette, declare a state of emergency.

Every declaration of emergency lapses at the expiry of 14 days, commencing with the day on which it was made, unless it has been approved by a resolution of each of the two Houses of parliament.