Here is how government should have handled coronavirus crisis

Wednesday July 1 2020

Traders outside a closed shopping arcade in

Traders outside a closed shopping arcade in Kampala on March 26. Many businesses have collapsed as a result of Covid-19 lockdown. PHOTO BY ABUBAKER LUBOWA 

By Gawaya Tegulle

Uganda is in unprecedented economic meltdown: many businesses are collapsing; landlords are fighting tenants; evictions and lawsuits – complete with counterclaims - are on the cards.

Banks and moneylenders are warning of taking over businesses and properties of defaulting clients, including, sadly, schools!
Employers have laid off several employees, who are now wondering where to go.

Many business premises are still closed; but some businesses inside them may never reopen.
And for all this, the coronavirus disease has still not killed anyone in Uganda.

But the way the lockdown has been managed has resulted in very many well publicised deaths, because the sick or women in labour couldn’t access hospitals; and a good number of people were killed by over-enthusiastic police, military and para-military outfits enforcing “Presidential Directives”.
And now as the lockdown is lifted, it’s clear many livelihoods are definitely no more.

You get the feeling, the worst is yet to come, given the trends; unless timely, strategic intervention is made.
When the world went into emergency mode – christened ‘lockdown’ – Uganda followed suit, in effort to curtail the spread of Covid-19.

The result was a series of lockdowns, first 14 days, then another 14, then 21, then…now it’s anybody’s guess where we are, but the lockdown is still on for the most part.

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It is interesting that government rejected calls for declaration of a state of emergency under Article 110 of the Constitution and merely acted on the directives of the President.
When challenged for want of legitimacy, government then began issuing small statutory instruments under the Public Health Act (PHA), which, it must be said was enacted…in 1935.

Most of the said instruments were issued in retrospect; there was a clear disconnect between the presidential pronouncements and the implementation instruments both in time and content.

On several occasions the President in his late evening speeches actually overruled the instruments issued earlier on the same day by his own government.
This was erroneous at law; because government was purporting to act under the PHA, but in essence overriding other statutes and suspending or amending certain provisions of the Constitution.

If the Covid-19 lockdown did not require the government of Uganda to formally declare a state of emergency – at a time when literally all the earth was in emergency mode and consequential lockdown – then there will never, ever, be a time when Uganda will need to proclaim a state of emergency.

For the record, Uganda is in a de facto (true by virtue of the facts, but not sanctioned by law) state of emergency; that’s obvious. What was required was a de jure (sanctioned by law) state of emergency.

This is not complicated legalese. In fact, a Senior Six student, from a third rate school, in the village, sipping tea and munching on roast maize, casually flipping through the Constitution, and applying his mind the facts as they existed in the heat of the Covid-19 lockdown, could have come up with a decent expose on the reasons for a state of emergency and what government ought to do.

Again, our Senior Six leaver would be able to explain, by casually flipping through the notes of his first-year law student friends, that in law, one Act of Parliament cannot override another Act, unless the Act deemed superior expressly and unequivocally provides so.

He would also tell you that a mere Act of Parliament cannot be used to suspend any provision of the Constitution: only the Constitution overrides statutes generally; because it is the supreme law of the land and every other law is only legitimate to the extent it agrees with the Constitution.

The Public Health Act is a statute of very limited application; there are things that cannot be done under it; one of those is preventing an economic meltdown when the country is in emergency mode.

Traders and buyers flock in Kikuubo, in
Traders and buyers flock in Kikuubo, in downtown Kampala yesterday. PHOTO BY KELVIN ATUHAIRE

What should have been done
I argue that this is what government ought to have done, under Article 110 of the Constitution.
First, a proclamation of a state of emergency for three months (extendable for three months at a time, if need be) should have been made by the President.

Second, within 14 days, the President would have presented the matter to Parliament for approval. That is what should have brought Parliament squarely into the picture.

Parliament would then have requested for legislative proposals (Bills) by the Executive which would spell out the way in which the country will be governed during the emergency period.

The laws would tell people what limitations have been introduced and be clear on how people should regulate their lives to avoid conflicting with the state.
The laws would also cover every aspect of society reasonably expected to be affected by the crisis. Some aspects are obvious; one, the freezing of time so that undertakings which are time-bound are not affected.

Loans, rents, taxes and any time-bound domains (like lawsuits and limitation periods at law) would benefit from this.
For example, a tenant would, if Parliament thought it fit, by the force of law, be immune from paying rent accruing during the emergency period.

Financial institutions would not be allowed to consider the emergency period when calculating loans due or interest thereon. Employers could have been prohibited from firing anyone, so that jobs are protected.

The routine interaction and interface of citizens would be regulated so that the powerless and weaker parties in contractual relationships are not victimised by the stronger counterparts like employers, lenders and landlords.

Equally importantly, the Legislature would consider proposals for state interventions in critical sectors of the economy. For example, the government could have been allowed to borrow monies from development partners or allocate monies from the Consolidated Fund for the purpose of providing State subsidies or loans to badly affected private players in the economy, to ensure that they are buttressed against potential collapse effect of the lockdown.

Policy and law, properly passed, protect state coffers in times of state intervention by way of subsidies and bailouts; for without that, it becomes an opportunity for officers of state to loot the Treasury without restraint.

The second component of a state of emergency would have been the launch of a clear operational framework to manage the crisis, with a defined organisational structure and a properly thought-out strategic plan – as opposed to the fire-fighting approach, where government is dealing with matters as and when they arise.

A broad strategic plan would have given the country chance to do everything in an organised and predictable manner.
The framers of the Constitution intended for a state of emergency protocol to give the nation a sense of direction, predictability and certainty.

People can organise their lives in response to the new framework of operation, so that they don’t have to be on tension. Investors, employers, business people can also plan better, because they have a sense of direction as to where the country is going and what tomorrow might look like.

As we have clearly seen, in the absence of compliance with constitutional prescription for emergency mode, many people have lost their lives while the virus itself has not killed anyone.

Under Article 110, the Constitution suspends part of its own provisions for, quite ironically, the sole purpose of protecting its broader self from abuse and abrogation; and in effect for the purpose of ensuring that the people sheltered under its wings do not suffer abuse by an Executive that maybe unduly overbearing and over-enthusiastic.

Article 110 is an example of proceeding by the exception rather than the rule. It was inserted as an acknowledgment that there are times when sheer necessity dictates that government must suspend certain laws and liberties; but that in doing so, the rule of law must continue, the chaos and commotion notwithstanding.
Why would a civilised government not declare a state of emergency?

One could be that they have no idea what the law says; but that is unlikely, given that our Senior Six leaver above would know where to find it, without looking too hard. Two is that government may not know how exactly a government should go about in declaring a state of emergency. That is also unlikely.
Three is the fear (albeit unfounded) of being perceived as weak, disorganised and not in control. That’s very likely.

Four, also very likely, is that formal declaration of a state of emergency sets in motion a protocol that allows the state to suspend part of the existing constitutional and legal order, but at the same time, empowers Parliament to check any intended or possible excesses on the part of the government.

This in essence means that thieving government officials and functionaries may not be able to benefit from the suspended legal order.
They cannot gain any political and financial advantage from such a scenario, so they would rather fight it passionately.

Where there is a clear state of emergency, but no formal steps have been taken to declare it and provide for its operation, the thieves of state are more comfortable; they can comfortably loot state resources without Parliament to limit them.

Things got so bad that the only participation of Parliament in this Covid-19 lockdown was to argue over the monies due to them; not about the legality and excesses of Executive action.

And the Executive, quite smartly, thought it better to keep Parliament on money arguments, giving them some billions, so that the Executive could do whatever it wanted, without hindrance.
Now in the fourth month of lockdown it may not be helpful to declare a state of emergency, since we are in advanced stages of lifting it.

What is critical now is for government to recognise the problems that exist as a result of the mismanagement of a perfectly understandable lockdown, and institute a clear and inclusive policy and legal framework to manage the mess and save the economy.

We are talking about corrective and curative policies and legislation touching every sector of society and the economy so that any interventions made are timely, effective, and inclusive to all Ugandans, and will actually resuscitate the economy and restore hope among the people.

Clear frameworks
Some sectors are urgent: banks, moneylenders, landlords, and the tax man must be handled within a clear framework, to avoid exorbitant interest rates that ordinary businessmen cannot hope to pay now, and cause quick Shylock-like swoops on properties, schools, businesses and carting off of people to debtors jail. Without this it looks like a party for the vultures.

But the vultures we have to fear are the ones in government who are waiting for the President to issue ‘chits’ to the Central Bank (illegal, by the way) to bail out certain players in the private sector; that is where they will make billions freely.

Equally urgent – and in need of clear policy and law – is the need for stimulus packages and structural incentives to excite the economy and begin a slow but steady journey to resumption of normalcy. This is too important to be left to the Executive alone.

The success of government in these Covid-19 times will not be determined by the absence of coronavirus fatalities alone. One must consider the bigger picture, especially the ability of government to save the economy from plummeting further and then turn it around.

Issue
Declaration
If the Covid-19 lockdown did not require the government of Uganda to formally declare a state of emergency – at a time when literally all the earth was in emergency mode and consequential lockdown – then there will never, ever, be a time when Uganda will need to proclaim a state of emergency.

gtegulle@gmail.com

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