MASERU – The Office of the Prime Minister and the National COVID-19 Secretariat (NACOSEC) this week sought to provide a legal justification for the prime minister’s decision to unilaterally declare a disaster-induced state of emergency against basic constitutional provision.
The Office of the Prime Minister and NACOSEC were jointly responding to Public Eye’s findings that the prime minister could have acted outside the bounds of law when he declared a disaster-induced state of emergency last year.
When making the declaration, former Prime Minister Motsoahae Thabane said he was exercising the powers bestowed on him in terms of Section 3 and 15 of the Disaster Management Act of 1997.
Thabane’s declaration of a six-month disaster-induced state of emergency expired in October last year and was extended by a further six months by the current prime minister, Dr Moeketsi Majoro.
Majoro also indicated that he was doing so in exercise of the powers bestowed on him in terms of Sections 3 and 15 of the Disaster Management Act. “The country is still operating under this declaration that still subsists; it is, therefore, incorrect and misleading to indicate that the declaration has lapsed,” the Office of the Prime Minister and NACOSEC said in a joint statement yesterday.
However, the Disaster Management Act gives prime minister, under Section 3, power to declare a state of disaster not a state of emergency. A state of emergency has its legal authority in Section 23 of the constitution. Section 15(b) of the Disaster Management Act gives the board of the Disaster Management Authority (DMA) power to “advise Prime Minister, through the minister responsible for the DMA, on the requirements for and the timing of a declaration of a disaster-induced emergency “in accordance with the constitution”.
Constitutional law expert, advocate Tekane Maqakachane told Public Eye yesterday that once the prime minister has received advice from the Board under section 15(b) of the disaster management act, he has to act in terms of section 23 of the constitution which provides for the declaration of state of emergency.
“The Prime Minister cannot declare a disaster-induced state of emergency without advice of the Council of State in accordance with section 23 of the constitution,” Maqakachane said.
“In terms of that section: In time of war or other public emergency which threatens the life of the nation, 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 that a state of emergency exists for the purposes of this chapter,” he said.
Maqakachane indicated that if challenged in court, the declaration of disaster-induced state of emergency declared by Thabane and extended by Majoro, would without be declared as invalid from the outset (void ab initio).
“And everything that is based on those declarations will be illegal,” he said.
The purported declaration of the COVID-19 disaster-induced state of emergency, made by Thabane and extended by Majoro, was used as a basis by former health minister, Motlatsi Maqelepo, to craft the Public Health (COVID-19) (Risk Determination and Mitigation Measures) regulations.
According to the Office of Prime Minister and NACOSEC, there is nothing wrong with that.
“The Public Health COVID-19 Regulations issued are, for all intends and purposes, within the law as they have been issued under a disaster induced state of emergency declaration under the Disaster Management Act,” the two offices said in a statement.
They further explained that former prime minister Thabane, acting on the advice of the Council of State, declared “a disaster-induced state of emergency” on March 27, 2020 “in terms of Section 23 (1) of the Constitution”. The state of emergency, according to the Office of the Prime Minister and NACOSEC, was extended from April 15, 2020 to April 28, 2020.
“The initial state of emergency declarations were effected for specified periods under the Constitution and lapsed after which a decision was made to effect a state of disaster declaration under the Disaster Management Act,” the two offices explained. They added: “Legal Notice No 40 of 2020 issued then was enacted and made provision for a declaration of COVID-19 disaster induced state of emergency…”
Public Eye has noted that the Office of the Prime Minister tends to use state of disaster and state of emergency interchangeably which is potentially confusing. Section 3 of the Disaster Management Act specifically provides for the declaration of state of disaster. However, Prime Minister Majoro used the same section to declare “a state of emergency on account of heavy rainfall” on Tuesday last week.
“Through the powers vested in me as per the Disaster Management Act of 1997, Section 3, Subsection 1 and 2, I declare a State of Emergency on account of Heavy Rainfall throughout the country for a period of six (6) months from today,” Majoro said. The phrase ‘state of emergency’ does not appear at all under Section 3, titled ‘Declaration of state of disaster’ and reads as follows:
“(1) If at any time it appears to the Prime Minister, on the advice of the Board, that any disaster in any area is of such a nature and extent that exceptional measures are necessary to assist and protect the public of such area or that circumstances are likely to arise making such measures necessary, he may declare that with effect from a date specified by him in such declaration, a state of disaster exists within the area defined in such declaration and such declaration shall be published in the gazette.”
Subsection 2 states further: “The declaration of a state of disaster shall remain in force for a specific period as set out in the declaration and may be extended accordingly.”