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Abioye, Funmi, ‘COVID-19, Women’s Rights, and the Rule of Law in Africa: Muddying the Waters’ (2022) Southern African Public Law (advance article, published online 29 June 2022) Abstract: The COVID-19 pandemic has disrupted the global space. African countries and societies have been greatly impacted, economies have been brought to the brink, with already established legal mechanisms designed to ensure the functioning of societies, being tested to the limit. In response, the concepts of ‘national lockdown,’ ‘social distancing,’ ‘travel restrictions’ have become too familiar as governments move to try and protect their populations. These measures have had deleterious effects on law, the rule of law and the protection of rights guaranteed by constitutions and regional instruments. In virtually every aspect of life, human rights have suffered the direct and indirect consequences of governments’ responses to the pandemic. This is particularly more so in African states, and among the vulnerable members of the African population. It is said that women in Africa have borne the brunt of the impact of the pandemic during the measures implemented by States in attempts to curb and control the pandemic. This article examines the impact of these responses on the rights of African women by drawing examples from South Africa. Constitutionalism and the rule of law are affected as rights are limited and at times derogated in an attempt to contain and control the pandemic. These derogations have had the unintended consequence of limiting the guaranteed rights of African women under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) and other international, regional and national legislative provisions. The necessary factors that States need to consider before imposing pandemic curtailment measures in future, are discussed and recommended
Addadzi-Koom, Maame Efua, ‘COVID-19 and Access to Justice in the ECOWAS Court: Reflecting on Early Judicial Responses and Its Future Implications’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 53–68 Abstract: Nigeria, home to the ECOWAS Court, was the first country in West and sub- Saharan Africa to confirm a Covid-i9 case. Lockdown restrictions in Nigeria, therefore, directly affected the ECOWAS Court’s operations. This study reflects on the ECOWAS Court’s early responses at the height of the global pandemic and its impact on access to justice. It asks, how did the ECOWAS Court respond to the Covid-19 pandemic in the first few weeks? To what extent did the Court remain in function within the period? What impact did the emergency measures by the Court have on access to justice? What potential do the measures put in place by the Court hold to become the new normal post-pandemic? Drawing from correspondence with a key informant at the ECOWAS Court, comprehensive desk- based research, and a review of relevant documents, this exploratory study found that while the Court in the early days suspended its operations indefinitely, it periodically reviewed the pandemic situation to inform its next steps which later incorporated some digital interventions. The implications and lessons drawn from the findings provide preliminary guidance for future crisis management for the Regional Court.
Agaba, Daphine Kabagambe, ‘Tackling Inequality and Governance Challenges: Insights from the COVID-19 Pandemic’ (2021) 21(2) African Human Rights Law Journal 877–906 Abstract: The article addresses inequality and governance in the face of the COVID-19 pandemic. Globally, it highlights ways in which COVID-19 has further exacerbated the already worrying inequality levels. Specifically, it addresses issues such as vaccine nationalism, rising income inequality levels, while the minority become richer, some from the manufacturing and selling of COVID-related products. From a governance perspective, it is argued that the reliance on liberal democracies to deliver equality is proving to be insufficient as these have been noted to pursue and prioritise market-based strategies that ultimately perpetuate inequality. Ultimately, it is forwarded that there needs to be a rethinking of the global political economy policies, including debt, health systems, intellectual property laws and trade, in order to directly address how such systems perpetuate inequality. In the context of the African continent, the article highlights the difficulty in accessing vaccines, posing a major threat to the continent, which is experiencing waves of the pandemic that are more disturbing than those that went before. It also highlights the extent to which paucity of research affects vaccine efficiency on the continent. COVID-19 has further worsened the already precarious political and economic situation in most of Africa, characterised by countries being unable to pay debt, electoral political violence, COVID-19 denialism, exploiting COVID-19 to clamp down on opposition, and misuse of COVID-19 funds. Thus, it is recommended that there needs to be an overhaul of the already broken fiscal and political environments rather than the adoption of piecemeal economic solutions such as debt freezes, or politically-flawed ones, that ultimately do not work.
Akuamoah, Ernest, ‘The Year 2020, COVID-19 and Elections in Africa’ (SSRN Scholarly Paper No ID 3596662, Social Science Research Network, 5 May 2020) Abstract: Across the continent, millions of people will be going to the polls to exercise their democratic rights this year. In theory, elections will provide avenues for citizens to hold their leaders accountable through either endorsing their legitimacy or replacing them if they have performed abysmally. In this regard, you would expect citizens to be enthusiastic and excited for the opportunity to vote, but this is not always the case. For the most part, election periods in many African countries are characterized by fear and panic because electoral contests are considered a ‘do-or-die’ affair . Even when incumbents are defeated, it is uncertain whether they will leave office. Moreover, the COVID-19 pandemic presents manifold challenges to democracy in Africa. This paper highlights some of these challenges and identify countries at high risk of contentious elections.
Andreoli, Enrico, ‘The Rule of Law under the Threat of the Pandemic. Echoes from the African Constitutional Justice’ (2021) 46(1) DPCE Online 1445–1554 Abstract: The ACB & Ors v Prime Minister & Ors case deals with a case of prorogation of Parliament of Lesotho made by the Prime Minister, which was an obvious attempt to avoid a vote of no-confidence. And such attempt was cautiously hidden behind a claim to be protecting human lives from the threat posed by the spreadofCovid-19.
Appiagyei-Atua, Kwadwo (ed), Conformity of COVID-19 Responses in Africa through the Prism of International Human Rights Law (Pretoria University Law Press, 2024) [OPEN ACCESS E-BOOK] Book summary: The book, Conformity of COVID-19 responses in Africa through the prism of international human rights law, provides useful insights into the subject-matter of COVID-19 from African perspectives on international law, human rights and democracy through detailed analyses of data, instruments, documents and events connected with the pandemic. The cutting-edge analyses by the contributors help to provide useful information on the human rights preparedness of African states to deal with pandemics, the limitations or restrictions imposed on human rights by African governments and the violations of human rights that took place during the pandemic; and whether the continent has learnt any useful lessons based on past experiences.
Arewa, Olufunmilayo, ‘COVID-19 Exclusion, Policy Contagion, and Colonial Hangover in Africa’ (SSRN Scholarly Paper No 4996274, Social Science Research Network, 21 October 2024) Abstract: African countries have experienced multiple consequences from the COVID-19 pandemic that extend beyond its immediate impact on human health. In Africa, much like elsewhere in the world, the pandemic has had a significant economic impact, leading to profound global economic distress. African countries have also experienced consequences that are unlike those of much of the rest of the world. The pandemic has contributed to a surge in sovereign debt defaults, including in Zambia in late 2020, Mali in early 2022, Ghana in late 2022, and Ethiopia in 2023. Travel bans and COVID-19 vaccine exclusion have also had a particular impact in Africa. The experiences of African countries during the COVID-19 pandemic highlight key consequences of colonial hangover and fundamental structural impediments and inequalities evident in global and local contexts.
Arimoro, Augustine Edobor, ‘Private Sector Investment in Infrastructure in Sub-Saharan Africa Post-COVID-19: The Role of Law’ [2021] Public Works Management & Policy (advance article, published online 29 December 2021) Abstract: Sub-Saharan Africa (SSA) is the lowest income region of the world with a considerable number of low-income countries. The region is challenged by a massive infrastructure deficit. In recent years, the governments of the countries in the region have expressed the desire to bridge the huge gap in infrastructure assets through a partnership with the private sector using the public-private partnership model. However, the advent of the Coronavirus (COVID-19) pandemic which has resulted in unplanned public sector expenditure poses a new kind of hurdle to climb for states in the region. As such, there is a need for governments in SSA to create and sustain efficient opportunities for private sector investment in infrastructure procurement and maintenance. This article adopted the doctrinal legal research method as well as review of literature in the examination of the role of law in creating a healthy and sustainable business environment for private sector participation in infrastructure financing and operation in a post-COVID-19 era in the SSA region. The article recommends among others, the enactment of legislation to create an enabling environment for raising domestic capital for the purposes of private sector–led public infrastructure procurement as well as the implementation of strategies suited for developing economies to attain successful outcomes in private sector backed infrastructure procurement.
Arnold, Nciko Wa Nciko, ‘Evacuated from Africa but Present in Africa’s Economy through Telework: Who Gets to Tax Them?’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture) Extract from Introduction: I begin by analysing the conditions that the UN and the OECD Model Conventions require of a country for it to have taxation rights over a cross-border worker. This analysis shows that such conditions are unfair for African countries amid the COVID-19 pandemic. Then, I provide recommendations for the way forward. I conclude by providing some theoretical grounding for these recommendations.
Augustine, Tshuma Lungile, Trust Matsilele and Mbongeni Jonny Msimanga, ‘“Weapons of Oppressors”: COVID-19 Regulatory Framework and Its Impact on Journalism Practices in Southern Africa’ in Carol Azungi Dralega and Angella Napakol (eds), Health Crises and Media Discourses in Sub-Saharan Africa (Springer, 2022) 253–266 [OPEN ACCESS BOOK] Abstract: The chapter examines the regulatory frameworks that were put in place by governments in the Southern African Development Community (SADC) region to combat the outbreak of COVID-19 and the impact it had on journalism practices in the region. African governments with the help of World Health Organization (WHO) guidelines crafted laws and policies which prohibited gatherings. These measures limited the conduct of journalism, i.e. gathering and dissemination of news, during the pandemic. While these laws were implemented to avert the virus, we argue in this chapter that some regimes used the pandemic to muzzle the media. We analyse laws that were gazetted in Zimbabwe, Tanzania, and South Africa to combat/ address COVID-19, and evaluate their impact on the practice of journalism in the region through the lens of securitisation theory. The securitisation theory indicates that by declaring something or phenomenon a threat, it ensures that such a phenomenon is moved out of the sphere of normal politics into the realm of emergency politics, where it can be dealt with without the normal (democratic) rules and regulations of policymaking. Methodologically, the chapter uses document analysis which is the systematic evaluation and review of documents. The study found that Zimbabwe and Tanzania enacted laws meant to restrict journalistic practice and information management flow under the cover of the pandemic. The laws enacted were targeted at critical and oppositional media. South Africa was a complete opposite as journalists were capacitated by the state to function properly during the pandemic even when other citizens’ rights were limited during the lockdown period.
Bah, Tijan L et al, ‘How Has COVID-19 Affected the Intention to Migrate via the Backway to Europe and to a Neighboring African Country? Survey Evidence and a Salience Experiment in The Gambia’ (NOVAFRICA Working Paper Series No 2107, 2021) Abstract: The COVID-19 pandemic has resulted in border closures in many countries and a sharp reduction in overall international mobility. However, this disruption of legal pathways to migration has raised concerns that potential migrants may turn to irregular migration routes as a substitute. We examine how the pandemic has changed intentions to migrate from The Gambia, the country with the highest pre-pandemic per-capita irregular migration rates in Africa. We use a large-scale panel survey conducted in 2019 and 2020 to compare changes in intentions to migrate to Europe and to neighboring Senegal. We find the pandemic has reduced the intention to migrate to both destinations, with approximately one-third of young males expressing less intention to migrate. The largest reductions in migration intentions are for individuals who were unsure of their intent pre-pandemic, and for poorer individuals who are no longer able to afford the costs of migrating at a time when these costs have increased and their remittance income has fallen. We also introduce the methodology of priming experiments to the study of migration intentions, by randomly varying the salience of the COVID-19 pandemic before eliciting intentions to migrate. We find no impact of this added salience, which appears to be because knowledge of the virus, while imperfect, was already enough to inform migration decisions. Nevertheless, despite these decreases in intentions, the overall desire to migrate the backway to Europe remains high, highlighting the need for legal migration pathways to support migrants and divert them from the risks of backway migration.
Boaz, Danielle N, ‘Moral, Environmental, and Physical Contamination: Africana Religions and Public Health before and during the COVID-19 Pandemic’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 57–74 Abstract: In 2020, global restrictions on religious gatherings raised questions regarding the extent to which governments could restrict religious liberty to protect the public. Although the COVID-19 pandemic heightened public awareness about such issues, African diaspora religions had already been widely persecuted as ‘superstitions’ that posed a threat to public health from the 18th century to the early 20th century. This article argues that discrimination against Africana religions has continued in the 21st century using similar rhetoric, as private citizens and governments in the Atlantic world have restricted religious practices that they claim threaten moral, environmental, and physical health.
Bouah, Nicole and Julia Sloth-Nielsen, ‘Towards Comprehensive Guidance for States in the African Region to Respond to Children’s Rights in Emergencies, Disasters and Pandemics’ (2021) 29(2) International Journal of Children’s Rights 447–474 Abstract: The COVID-19 pandemic spread has it impacted health systems, economies and communities across the African continent. It has also exacerbated risks already faced by children: limiting access to education, reducing protection from sexual and gender-based violence, harmful traditional and cultural practices including child, early or forced marriage (CEFM), female genital-mutilation (FGM); and further limiting access to reproductive services and food insecurity. This article illustrates that because demonstrably different considerations arise by comparison to children’s experiences in the global north, it would be a valuable contribution for the African Committee of Experts on the Rights and Welfare of the Child to develop a General Comment on state responses to upholding children’s rights in the context of epidemics, pandemics and emergencies, tailored to the specificities of the region. [ABSTRACT FROM AUTHOR]
Bradlow, Daniel D and Magalie L Masamba (eds), COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) *[OPEN ACCESS BOOK]* Book summary: This multi-disciplinary publication focuses on the issue of African sovereign debt management and renegotiation/ restructuring, with a particular concentration on the countries that are members of the Southern Africa Development Community (SADC). It contains a series of essays that were initially presented in several workshops held at the height of the pandemic, in 2020. These essays seek to both understand the debt challenges facing these countries and to offer some policy-oriented suggestions on how they can more effectively address these. They include contributions by global and regional scholars who are seasoned experts and newer researchers and discuss the complexities on debt management and restructuring within the context of the global COVID-19 pandemic. In particular, this presented an opportunity for junior researchers from the region to contribute to international discussions on a topic in which the views of young Africans are not heard as often or as clearly as they should be, especially given the importance of the topic to Africa and its future. Further, this book is expected to stimulate debate among academics, activists, policy makers and practitioners on how SADC should manage its debt.
De Gama, Rafia, ‘COVID-19, Clinical Trials Regulations: Making Sure Africa Is Not an Unregulated Testing Ground’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture) Abstract: Recently, there has been discussion in the media, about vaccine trials for COVID-19 that may take place on the African continent. This discussion had been in the offing, mainly because Africa has sometimes been left out of vaccine trials. The discussions stirred more controversy when two top French scientists suggested that clinical trials should take place in Africa. Since the interview, The World Health Organisation (WHO) Director General (DG) Dr. Tedros Adhanom Ghebreyesus addressed the utterances to state categorically that this problematic colonial mindset was unacceptable. At the same time, the Democratic Republic of Congo has agreed to be one of the countries to test a COVID-19 vaccine, further ‘muddying the waters.
Desta, Melaku Geboye, ‘Rules-Based International Cooperation During a Global Pandemic: The COVID-19 Crisis and Trade Law Lessons for Africa’ in Zeray Yihdego, Melaku Geboye Desta and Martha Belete Hailu (eds), Ethiopian Yearbook of International Law 2019 (Springer, 2020) 11–30 Abstract: While COVID-19 is fundamentally a public health crisis, it has also brought with it a global socio-economic emergency unprecedented in the history of the world. This article examines an unlikely victim of the COVID-19 pandemic, the global regime for the governance of international trade, and does so from an African perspective. Following the proliferation of national measures restricting the export of COVID-19-essential personal protective equipment and other medical products at a time when trade literally can mean saving lives, this article asks whether import-dependent countries such as most states in Africa can rely on the multilateral trading system to secure access to these life-saving equipment and supplies. Answering this question in the negative, the article argues that those African countries that lack domestic manufacturing capacity—which make up the majority on the Continent—need to rethink their commodity-export-dependent development strategy and refocus on industrialisation backed up with adequate research and development capacity. Finally, the article also suggests that States Parties to the AfCFTA Agreement should use this period as a window of opportunity to revisit the text of the Agreement so a revised AfCFTA has a better chance of coping with the next pandemic or emergency.
Durojaye, Ebenezer and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022)link to book page on publisher website
Contents:
- Adebanjo, Adetoun and Ebenezer Durojaye, ‘International Human Rights Norms and Standards on Derogation and Limitation of Rights During a Public Emergency’ 79–109
- Kilonzo, Josephat Muuo, ‘Addressing Covid-19: A Test of Kenya’s Constitutional and Democratic Resilience’ 111–144
- Phiri, Christopher, ‘Covid-19 and Zambia’s Constitutional Dilemma’ 145–178
- Akech, Joseph Geng, ‘Constitutional Resilience and Limitation of Rights Under Covid-19 Response in South Sudan’ 179–200
- Nabaneh, Satang and Basiru Bah, ‘The Covid-19 Pandemic and Constitutional Resilience in The Gambia’ 201–221
- Oluduro, Olubayo, ‘Walking a Tightrope: Balancing Human Rights and Public Health Measures During the Covid-19 Pandemic in Nigeria’ 223–254
- Mahadew, Roopanand, ‘The Constitutionality of Legal Measures Taken by the Government of Mauritius in the Context of the Covid-19 Pandemic’ 255–281
- Nanima, Robert Doya, ‘Constitutional and Human Rights Issues Arising from Covid-19: Uganda’s Youth in Context’ 283–309
- Nkrumah, Bright, ‘The (Il)Legality of Ghana’s Covid-19 Emergency Response: A Commentary’ 311–339
- Nanima, Robert Doya, Ebenezer Durojaye and Derek M Powell, ‘Constitutional and Human Rights Issues Arising from Covid-19 in South Africa’ 341–369
- Chidhawu, Tinotenda, ‘Zimbabwe’s Response to Covid-19 and Its Socio-Economic Impact’ 371–402
Abstract: Devastating! An apt single-word description for the COVID-19 pandemic. It was nothing short. Explosive in its spread, its modus operandi was vicious and fiendish, with deteriorating progression from fever and respiratory nodi to organ failure and eventual death. Unrepentantly swift, it was initially reported to the World Health Organization (‘WHO’) in December 2019, only to be declared a global health emergency a month later. By March 2020, it was designated a global pandemic; the first since 2009’s H1N1 influenza, which inarguably pales in comparison. COVID not only oversaw an exodus to the afterlife, it also torpefied economies worldwide; and as Africa now makes gradatory headway towards recovery, she cannot be incautious of the reality that the pandemic and attendant lockdown bore some critical lessons, particularly relevant to the continent. This paper sheds light on a few of these salient lessons.
Ezirigwe, Jane et al, ‘“COVID-19/Food Insecurity Syndemic”: Navigating the Realities of Food Security Imperatives of Sustainable Development Goals in Africa’ (2021) 14(1) Law & Development Review 129–162 Abstract: The current coronavirus disease 2019 (COVID-19) pandemic is impacting on food systems and has exposed the poor state of food security and lack of food system infrastructures. Consequently, sub-Saharan Africa countries face the compounded risk of COVID-19 and hunger. The syndemic will pose serious challenges for achieving food security imperatives of the Sustainable Development Goals (SDGs) by 2030. This article discusses the dynamics of food security imperatives brought about by COVID-19 pandemic. It examines the mitigating efforts of sub-Saharan African governments in addressing COVID-19 and how this effort impacts the attainment of SDGs One, Two, Three and 12. It finds that while the pandemic provides an opportunity for governments to strengthen their commitments, it raises questions on the ambitious global efforts to deliver SDGs by 2030. It recommends that African governments need to maximize intra-African trade with investments in agricultural biotechnological infrastructure in order to close the gap between the targets and the realities, in the efforts towards achieving the SDGs.
Fagbayibo, Babatunde and Udoka Ndidiamaka Owie, ‘Crisis as Opportunity: Exploring the African Union’s Response to COVID-19 and the Implications for Its Aspirational Supranational Powers’ (2021) 65(S2) Journal of African Law 181–208 Abstract: The COVID-19 pandemic has proved challenging to states and regional organizations, exposing gaps in political leadership as well as in the preparedness of economic and public healthcare systems. As states and organizations contend with the pandemic, the African Union’s response in this regard, thus far, indicates the imperative of enhanced multilateralism. Its response also provides a template for endowing the organization with assertive, binding powers over its member states and, as such, achieving its supranational aspirations. In this respect, this article argues that the African Union’s display of progressive internationalism, swiftness of action, agency and legitimacy in combatting the coronavirus pandemic are elements that can be applied in sharpening its processual quest for supranationalism.
Fambasayi, Rongedzayi and Hadiza Omoyemhe Okunrobo, ‘Children’s Rights and COVID-19 Responses under the African Union : Recent Developments and Challenges’ (2021) 54(1) Comparative and International Law Journal of Southern Africa 1–31 Abstract: There is little doubt that children are at risk of being seriously affected by the socio-economic impact and the response measures to the COVID-19 pandemic that may inadvertently affect their rights, interests and well-being. UNICEF has declared that unless states act together, globally and regionally, to address this, it is possible that the pandemic will permanently cause damage to children and our shared future. The pandemic poses real challenges for children around the world, particularly the developing countries in Africa. Most African countries are already bedevilled by socio-economic frailties, corruption, conflict and institutional problems. In this article we explore responses to COVID-19 from the African Union (AU), to ascertain how regional responses have integrated the protection of the rights and interests of children. With the African Children’s Charter as a guide, it is argued that institutions at the AU continental and subregional levels are increasingly becoming aware of the importance of children’s rights as a distinct issue rather than being part of women’s concerns. The AU celebrated the thirtieth anniversary of the African Children’s Charter in 2020, and this occasion provides a timely opportunity to reflect on how regional institutions are integrating the principles of children’s rights in regional governance processes and decision-making.
Faturoti, Bukola, ‘Online Learning during COVID19 and beyond: A Human Right Based Approach to Internet Access in Africa’ (2022) 36(1) International Review of Law, Computers & Technology 68–90 Abstract: Teaching and learning were disrupted due to lockdown imposed as part of efforts to curb the spread of the COVID19 virus that hit the world in 2020. As a result, many national governments requested educational establishments to migrate their teachings online. In Africa, internet penetration has improved in the last decade. However, the continent still lags in integrating the Internet into learning. Besides, there is unequal access to technologies used in online education and unequal access to data and connectivity. Regarding access to quality learning, the COVID-19 pandemic has widened the gap between the rich and the poor and has exposed society’s fragility. This paper evaluates the strategies of African leaders in sustaining access to learning and the experience of learners during COVID19 lockdown. It argues that most African countries’ educational systems are unprepared for the sudden switch to online learning. Finally, it investigates future policy strategies in bringing more Africans out of the digital desert.
Fombad, Charles Manga and Lukman Adebisi Abdulrauf, ‘Comparative Overview of the Constitutional Framework for Controlling the Exercise of Emergency Powers in Africa’ (2020) 20(2) African Human Rights Law Journal 376–411 Abstract: The need to act swiftly in times of emergency gives governments a reason to exercise emergency powers. This is a legally valid and accepted practice in modern democracies. Post-independence African constitutions contained provisions that sought to regulate states of emergency, placing the emphasis on who could make such declarations and what measures could be taken, but paid scant attention to the safeguards that were needed to ensure that the enormous powers that governments were allowed to accrue and exercise in dealing with emergencies were not abused. As a result, these broad powers were regularly used to abuse fundamental human rights and suppress opponents of the government. In the post-1990 wave of constitutional reforms in Africa, some attempts were made to introduce safeguards against the misuse of emergency powers. This article undertakes a comparative assessment of the extent to which these reforms have reduced the risk that the exercise of emergency powers poses to human rights and progress towards constitutionalism and respect for the rule of law, especially in times of global pandemics such as COVID-19. Indeed, the COVID-19 pandemic has exposed the weaknesses of the constitutional reforms designed to check against the abuse of emergency powers. In most African countries, governments in dealing with the virus decided to act within the legislative framework, which subjects them to few checks rather than rely on the constitutional frameworks which in most cases provide for more elaborate checks. It is clear from the experiences of the past few months that most African constitutions never anticipated an emergency of such magnitude. The article concludes by arguing that one of the major lessons of the COVID-19 pandemic is that there is a need to review the constitutional and regulatory framework for the exercise of emergency powers to better prepare for future pandemics.
Gabore, Samuel Mochona, ‘Western and Chinese Media Representation of Africa in COVID-19 News Coverage’ (2020) 30(5) Asian Journal of Communication 299–316 Abstract: In news production and dissemination, media represent communities, countries, and continents by constructing concepts, images, and identities as viewed by selected information sources. It is often assumed that foreign countries are labelled ‘Others’ by global media and misrepresented. This study aims to explore how differently Western and Chinese media source and frame events in Africa. Comparative content analysis of news coverage of COVID-19 prevention in Africa revealed that Western media used African official, African non-official, and Western non-official channels as information sources whereas Chinese media mainly used African and Chinese official sources. The result demonstrated that Western media covered events in Africa in Conflict, Negativity, Human interest, Impact, Eminence, and Novelty frames in positive, neutral, and negative tones whereas Chinese media covered mainly in Impact, Eminence and Novelty frames mostly in positive tone. Overall, the results suggest that Western media coverage of the events is not predominantly negative; and Chinese media coverage is uncommonly affirmative. The findings also suggest that sourcing shapes frames, tones, and representation of ‘Others’ by news media.
Gutierrez-Romero, Roxana, ‘Conflict in Africa during COVID-19: Social Distancing, Food Vulnerability and Welfare Response’ (SSRN Scholarly Paper No ID 3616421, 28 May 2020) Abstract: We study the effect of social distancing, food vulnerability, welfare and labour COVID-19 policy responses on riots, violence against civilians and food-related conflicts. Our analysis uses georeferenced data for 24 African countries with monthly local prices and real-time conflict data reported in the Armed Conflict Location and Event Data Project (ACLED) from January 2015 until early May 2020. Lockdowns and recent welfare policies have been implemented in light of COVID-19, but in some contexts also likely in response to ongoing conflicts. To mitigate the potential risk of endogeneity, we use instrumental variables. We exploit the exogeneity of global commodity prices, and three variables that increase the risk of COVID-19 and efficiency in response such as countries colonial heritage, male mortality rate attributed to air pollution and prevalence of diabetes in adults. We find that the probability of experiencing riots, violence against civilians, food-related conflicts and food looting has increased since lockdowns. Food vulnerability has been a contributing factor. A 10% increase in the local price index is associated with an increase of 0.7 percentage points in violence against civilians. Nonetheless, for every additional anti-poverty measure implemented in response to COVID-19 the probability of experiencing violence against civilians, riots and food-related conflicts declines by approximately 0.2 percentage points. These anti-poverty measures also reduce the number of fatalities associated with these conflicts. Overall, our findings reveal that food vulnerability has increased conflict risks, but also offer an optimistic view of the importance of the state in providing an extensive welfare safety net.
Hankings-Evans, Anna, ‘Africa’s Human Rights and Development-Based Approaches to International Investment Law’ in Julian Scheu, Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2022) 291–336
Igbozurike, John Kennedy, ‘Unraveling the Quandary of Covid-19 on Commercial Transactions Especially in the Wake of Supranational Regulations’ (SSRN Scholarly Paper No 4519972, 24 July 2023) Abstract: Central to the efficacy of commercial activity is mobility – lots of it. To this effect, we have in place, the World Trade Organization (WTO) Rules and the African Continental Free Trade Area agreement (AfCFTA) - some instruments responsible for the regulation of supranational trade and ancillary commercial activities within the globe and Africa respectively. This dissertation seeks to open a discourse along the lines of the implication of border closures on supranational pacts like the General Agreement on Tariffs and Trade (GATT) and the AfCFTA. For apt context, this thesis has recourse to the principle of pacta sunt servanda. Undoubtedly, the digital commerce phenomenon has unlocked seamless trade opportunities. However, these opportunities can only be fostered by mutual supranational trade understanding. To this effect, further emphasis is placed on the role of the AfCFTA in the mitigation of the impact of the pandemic on commercial activities within Africa and ultimately, the African economy. Still on state policy regulation, using Nigeria and the United States of America as models, the thesis asserts that the pandemic has brought to the fore; regulatory hitches at the municipal level specifically (potential) conflicts between tiers of government as they navigate the regulation of public health in a bid to foster seamless commercial activities within their jurisdictions. The lens of the thesis is particularly zeroed in on the U.S Commerce Clause, State Police Power, Nigerian authorities responsible for the issuance of quarantine orders, and regulation of health, safety, and welfare of persons engaged in interstate conveyance and commerce, to mention a few. What is more? The dissertation narrows its focus to the impact of the coronavirus on contracts entered into by individual parties, making allusions to court dispositions in different jurisdictions. The dissertation concludes by proposing a solution force majeure debate as well as a conflict resolution mechanism between the tiers of government in their bid to formulate policies touching on public health and commercial activities.
Iheme, Williams C and Sanford U Mba, ‘A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis’ (2021) 32(2) Stellenbosch Law Review 306–329 Abstract: The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.
Irvine, Heather and Nadira Deonarain, ‘COVID-19 Pandemic and the Employer’s Health and Safety Obligations’ (2020) 20(3) Without Prejudice 11–12 Abstract: Health and safety legislation throughout Africa is clear that employers have a legal duty to provide and maintain a safe, healthy work environment. For instance, in Kenya, employees are protected under ‘The Occupational Safety and Health Act 2007’; Seychellois employees under the ‘Occupational Safety and Health Decree 1978’, and South African employees under the ‘Occupational Health and Safety Act 1993’. Accordingly, from both a legal and operational perspective, employers must do all that is reasonably possible to ensure that employees are protected from infection and the spread of COVID-19 in the workplace.
Kasimbazi, Emmanuel, ‘Trends in Covid-19 Litigation in Africa’ in Paola Iamiceli and Fabrizio Cafaggi (eds), COVID19 Litigation: The Role of National and International Courts in Global Health Crisis (Università degli Studi di Trento, 2024) 291 *[OPEN ACCESS BOOK]* Chapter summary: 1. Introduction. 2. Trends in COVID-19 litigation and court pronouncements. 2.1. Access to Personal Protective Equipment (PPEs) for frontline health workers. 2.2. Conducting of elections amidst the pandemic. 2.3. Travel restrictions on freedom of movement. 2.4. Failed attempt to challenge imposition of restrictions. 2.5. Restrictions to conducting of businesses and court intervention. 2.6. Cost of COVID-19 testing and treatment. 2.7. Provision of essential services to communities during the pandemic. 2.8. Closure of schools during the pandemic. 2.9. Immigration. 2.10. State highhandedness in implementation of COVID-19 restrictive measures. 3. Courts Approach in handling COVID-19 cases. 3.1. Use of adversarial and not and inquisitorial approach. 3.2. Necessity as a justification. 4. Challenges to COVID-19 Litigation. 4.1. Lack of detailed legislation. 4.2. Pandemic unpredictability. 4.3. Case backlog. 4.4. Limitations to litigation. 4.5. Government actions on COVID-19 legislation. 5. Conclusion.
Kassa, Woubet, ‘COVID-19 and Trade in Africa: Impacts and Policy Response’ (SSRN Scholarly Paper No ID 3619230, 1 June 2020) Abstract: Measures adopted to curtail the spread of COVID-19 have led to a sharp contraction of the global economy and an even larger decline in global trade, with significant implications on the livelihoods of people in Africa. Despite the relatively low number of cases, the region’s economy would be hard hit due to its high reliance on trade, heavy dependence on commodities, a fragile food system, and limited fiscal capacity to respond. This reinforces the region’s inherent vulnerabilities, posing risks of wiping out the gains made in poverty reduction. Countries that have been registering robust growth face rapid growth declines. The response calls for a regional and global coordination to scale up safety nets, facilitate flow of essential goods and ease the region’s debt burden to free some fiscal space. There is a need for active policies to support enterprises so that disruptions are not permanent. This requires coordinated effort between government, workers organizations, global lead firms as well as domestic firms. This may also provide opportunities to introduce reforms that would otherwise be considered sweeping. As they chart their operations, beyond the pandemic, countries should reconsider their industrial policies and firms need to rethink their strategies to address emerging uncertainties.
Kedogo, Vellah Kigwiru, ‘Covid-19, Trade and Competition Law in Africa’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium III: Sovereign Debt, Finance and Competition Law) Extract: The link between competition law and trade cannot be overemphasized. Competition agencies at both national and regional level in Africa, play a key role in promoting trade in the region, through approving mergers, ensuring anti-competitive conduct do not occur and protecting consumers from exploitation.
Kembabazi, Gloria, ‘Local Industrial Production in EAC & Uganda (Reflecting on the AfCFTA and the Emergence of COVID-19): Legal Framework’ (2020) 7(4) KAS African Law Study Library - Librairie Africaine d’Etudes Juridiques 594–600 Abstract: This paper analyses the state of local industrial production in Uganda and how the emergence of COVID-19 has impacted it. This analysis bears in mind the regional context of Uganda as Partner State of the East African Community and a member of the African Union. Both of these institutions have mechanisms that impact on trade and relatedly on local industrial production, most notably the newly established African Continental Free Trade Area (AfCFTA). Overall, the paper makes a case for furthering local industrial production drawing on the lessons from the economic and developmental impact that the pandemic has wrought on the country.
Kiragu, Alex and Patricia Ahawo Gwambo, ‘Proposed Solutions for Sub-Saharan Africa for Food and Agriculture in the Context of COVID-19’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture) Introduction: The world is facing unprecedented times and with the wake of COVID19. In addition to the already strained economies struggling to stay afloat, the fact that food is made largely available through human contact and the fact that social distancing and stringent measures on food handling has resulted in food supply declines and unmet demand because of food limited availability. A look at the global south with a focus on Sub- Saharan Africa (SSA) right now brings to light the fact that most governments are struggling with the decision to call for total lockdown in part because of the impact on making food available for its lowest-income earners or lower-income settlement dwellers who are often the most vulnerable. Agriculture also suffers a double fate with many countries having their agriculture adversely impacted by the latest locust movement across Sub-Saharan Africa (SSA). In addition, the changing weather patterns and in effect lower agriculture performance than expected means that COVID19 will compound these challenges. Some of the challenges that are being faced can be addressed by a review of policies to alleviate food problems in SSA. We also then need to strengthen policy by ensuring greater implementation and support through new laws.
Lokhandwala, Zainab, ‘Environmental Law in the Middle East and North Africa’ [2020] Opinio Juris in Comparatione (pre-print) Abstract: This paper analyses the impact of the Covid-19 pandemic on the Middle Eastern and North African (MENA) region against the backdrop of two themes: climate action and human rights. In the climate context, the renewable energy sector will certainly suffer in the immediate aftermath of Covid 19. At the same time, globally, renewables have shown more resilience than fossil fuels during this crisis, which may lead to increased investments in the long-term. Nevertheless, pre-Covid commitments and estimated future gains (if any) in renewables were not enough for combating climate change. The trajectory of regional climate action was slow and inadequate to begin with, and it is likely to suffer even further, owing to economic slowdown and relief measures that will pull resources away from climate action. In the human rights context, the Covid 19 crisis has led to increased authoritarianism and has added a new layer to existing human rights and humanitarian issues. As political stability is a prerequisite for the growth and execution of environmental law, public discontent against governments will only delay and detract the environmental agenda. Overall, these two legs of analysis show how the pandemic has led to a retraction of environmental law. Coming out of the crisis, there are many lessons to be learnt. Interdisciplinary approaches that draw a human-ecological-health nexus may offer solutions in the Middle East as in the world. The Berlin Principles 2019 are a positive step in this direction which could pave the way for more ecosystemic and holistic environmental legal development.
Magwape, Mbakiso, ‘SACU and Trade Facilitation: A Post-Covid Pandemic Legal Analysis for Improved Efficiency’ (2023) 18(2) Global Trade and Customs Journal 64–73 Abstract: The Southern African Customs Union (SACU) prioritizes trade facilitation as one of its primary objectives in its founding Agreement (Article 2 (a)), implementing programmes to increase trade through expedited movement, and release and clearance of goods in the region. The oldest Customs Union in the world anticipated increased trade-flows following the entry into force and implementation of the progressive World Trade Organization’s Trade Facilitation Agreement (WTO TFA), and operation of the African Continental Free Trade Agreement (AfCFTA). Its aspirations, however, were dampened by the Covid-19 pandemic, which presented supply side challenges and slowed customs processes. Members introduced critical legislative measures to reduce or stop the spread of coronavirus disease (COVID-19) and initiate needed trade-facilitations interventions at a national and regional level. SACU also played a role in this regard, albeit a minimal one, through Council decisions. This raises the question of the SACU’s effectiveness, or ineffectiveness, its relevance in its functions, institutional structural readiness to address pandemics and regional emergencies, and future role it will play in this regard. This article examines trade-facilitation related responses from the institution following the outbreak of the pandemic, and adequacies/inadequacies of the said measures. The article, lastly, proposes trade-facilitation related approaches the SACU could adopt to improve efficiency for future pandemics and other global emergencies.
Milej, Tomasz, ‘Reclaiming African Agency: The Right to Regulate, Investor-State Dispute Settlement, and the ‘Africanisation’ of International Investment Law’ in Julian Scheu, Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2022) 337–368
Mohee, Mansha, ‘Electoral Governance and Human Rights Amid Pandemics in Africa: Key Lessons from the Early COVID-19 Experience’ (2021) 65(S2) Journal of African Law 209–236 Abstract: Over 25 African countries had planned elections for 2020. In the face of the onset of the COVID-19 pandemic in March, states resorted to one of two courses of action: adherence to planned electoral timelines in the shadow of the outbreak, which largely led to record low voter turnouts and hastened the spread of the virus; or adjourning elections with ill-defined election programming, constitutional tensions and unrest over delayed polls. The global health crisis not only frustrated the organization of the electoral process but set severe challenges to democracy, the rule of law and human rights in the region at a time of landmark elections, notably in Ethiopia, Burundi and Malawi. This article analyses initial state responses in electoral administration in light of international electoral norms, and interrogates the role of national and regional mechanisms in securing safe, inclusive, timely, free and fair elections amid new infectious disease outbreaks.
Mubiala, Mutoy, ‘Africa and Pandemics: Towards a Regional Health Security Regime’ (2022) 3(1) Yearbook of International Disaster Law Online 71–91 Abstract: African regional and sub-regional organizations have played an important role in the development of a regional approach to international law. This relates to most fields of this discipline, including international health law. This article examines the institutional aspects of African regionalism in this field at both sub-regional and regional levels. In particular, the article examines and evaluates the respective roles of the Regional Economic Communities, with special reference to the Economic Community of West African States (ECOWAS) specialized health agency, the West African Health Organization (WAHO) and the African Union (AU) Centre for Disease Control and Prevention (Africa CDC) in their responses to the recent pandemics, including the Ebola outbreaks in West Africa (2014–2016) and the Democratic Republic of the Congo (DRC), as well as their intervention in the context of the COVID-19 pandemic. The article evaluates their contribution to the development of a regional health security regime and to the implementation of the emerging African principle of ‘Responsibility to assist’ (neologism) in the context of the above-mentioned pandemics. The paper also examines how African regional human rights mechanisms have addressed the human rights challenges faced by African States in the same context, with special attention to the promotional activities of the African Commission on Human and Peoples’ Rights. The paper respectively addresses the normative, institutional and operational aspects of the emerging African health security regime.
Munoz Tellez, Viviana, ‘The COVID-19 Pandemic: R&D and Intellectual Property Management for Access to Diagnostics, Medicines and Vaccines’ (SSRN Scholarly Paper No ID 3640229, 10 April 2020) Abstract: The ongoing rapid spread of COVID-19 is challenging the capacity of governments and of the World Health Organization (WHO) to timely put in place a global coordinated response to the pandemic. Developing countries and Least Developed Countries (LDCs) in particular in Africa are especially vulnerable to the unfolding effects of the public health crisis. A priority area for global collaboration is to advance research and development (R&D) for vaccines and medicines that are made available, affordable and accessible worldwide.There is currently no vaccine and no proven safe and effective direct therapy for COVID-19. There is also the need to accelerate testing capacity and tools in developing countries and LDCs with increased access to low-cost diagnostics. The approach to the management of intellectual property rights by research institutions, pharmaceutical and biotech companies and R&D funders will decisively affect availability and access, as well as the transfer of technology and know-how. Governments must ensure that they have legislative and procedural frameworks in place to enable them to over-come any patent, data exclusivity and trade secret barriers to procure and produce COVID-19 diagnostics, vaccines, medicines and other therapeutics.
Mutongoreya, Garikayi, ‘Education as a Human Right: Exploring the African Context’ (SSRN Scholarly Paper No ID 3784615, 11 December 2020) Abstract: This article submits that the right to education is a fundamental human right and it notes a plethora of changes and subsequent conventions after the 1948 declaration of human rights, all in attempt to enforce the right to education. Despite all the convections, the right to education continues to be violated as children in most African countries are still paying fees at primary school level. The article also notes contextual narratives that affects the implementation of the right to education such as historical perspectives, financial matters and recently how this right has been curtailed by the effect of the COVID-19 pandemic.
Musokwa, Irene, ‘Coronavirus Counter-Measures, The Treaty for the Establishment of the East African Community and Domestic Legal Requirements’ [2023] The African Review (advance article, published online 21 February 2023) Abstract: This article examines the coronavirus counter-measures adopted by East African states from a legal perspective. The focus is whether the adopted measures infringe on the provisions of the Treaty for the Establishment of the East African Community (EAC) and domestic legislations, including the countries’ constitutional provisions. The legal recourse for East African citizens in instances where domestic remedies have failed will be examined in light of the role of the judicial organ of the East African Community, the East African Court of Justice (EACJ). An examination will be made on protection of human rights under the EAC Treaty and the jurisdiction of the EACJ in adjudicating on allegations of human rights violation. This contribution will proceed to debate on the existing relationship between international law and domestic laws; whether international law is superior to domestic law and whether international bodies can entertain a complaint by an individual or an institution on violation of human rights where redress has not been exhaustively sought through domestic legal systems.
Mwangi, Jacquelene, ‘COVID-19 and the “Unlocking” of Innovation: Reflections on Law and Innovation in Sub-Saharan Africa’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture) Extract from Introduction: I will reflect on the logics that have obscured innovation namely, international intellectual property law and formal organization of innovation through ‘national innovation systems’. These two combine under the banner of legal modernization and economic growth, and have collectively undermined innovation that does not fit into their premises.
Ndedi, Professor Alain, ‘Framework in Ending Gender-Based Violence with the Advent of the COVID 19 from an African Perspective’ (SSRN Scholarly Paper No ID 3571319, 8 April 2020) Abstract: African countries have been among the last to be hit by the global coronavirus pandemic. Yet, as the cases rise and governments rightfully take the necessary measures to slow the spread of the virus, the continent is likely to face widespread economic fallout as business slows to a near halt. (Ndedi, 2020) The emerging evidence of the impact of the recent global pandemic of COVID-19 on violence against women and girls needs some attention. In this paper, we are making recommendations to be considered by all sectors of society, from governments to international organisations and to civil society organisations in order to prevent and respond to violence against gender-based violence, during, and after the public health crisis with examples of actions already taken. In view of economic impact of the pandemic and its implications for violence against women and girls in the long-term. This paper draws upon the knowledge and experience of a wide range of experts who support solutions to end violence against women and girls.
Nyotah, Priscah, ‘Effect of Covid-19 Containment Measures on the Right to Free Movement Under East African Community Common Market Law’ (2023) 2(1) African Journal of Commercial Law 97–120 Abstract: The right of establishment is provided for under the Protocol on the Establishment of the East African Community Common Market (Common Market Protocol). It entitles nationals of an East African Community (EAC) Partner State to move into another Partner State, establish themselves and carry out economic activities. The attainment of the right of establishment is one of the key drivers towards the achievement of the accelerated economic growth and development of the Partner States. Due to the Covid-19 pan demic, the EAC Partner States have invoked protection of public health as a ground to restrict the movement of citizens of other Partner States into their territories. Through content analysis method, this paper analyses the provisions of the Common Market Protocol in facilitating the realisation of the right of establishment in the wake of pandemics such as Covid-19, with a focus on free movement of persons. It finds that there are no parameters on the invocation of threat to public health as a ground for limiting free move ment under the Common Market Protocol. It concludes that this lack of guiding provisions contributes to the violation of the right of establishment
Oamen, Philip and Eghosa Ekhator, ‘The Impact of COVID-19 on the Socio-Economic Rights of Older Persons in Africa: The Urgency of Operationalising the Protocol on the Rights of Older Persons’ (2021) 21(2) African Human Rights Law Journal 782–811 Abstract: Since the outbreak of the COVID-19 pandemic across the world, it has been reported that older persons have suffered acute hardship and fatalities more than any other age group. According to the World Health Organisation the fatality rate among older persons is five times the global average, and the United Nations has predicted that the mortality rate could climb even higher. The situation is aggravated on the African continent as a result of a shortage of medical personnel and other resources, as well as inadequate palliative measures to address the issues around the pandemic. Despite the provisions in the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on the Rights of Older Persons in Africa which seek to provide some safety nets, many of these senior citizens continue to suffer untold socio-economic hardship. Adopting an analytical and doctrinal methodology, this article examines the Protocol, the International Covenant on Economic, Social and Cultural Rights and several United Nations policy documents aimed at realising the socio-economic rights of older persons. The article finds that there is a lack of political commitment to operationalise the provisions of the Protocol, as evinced by the limited number of countries that have ratified it since its adoption in 2016. It comparatively engages with the provisions of the Inter-American Convention on the Rights of Older Persons to argue that, beyond the normative framing of these rights in Africa, there is a need for deliberate and genuine commitment by governments in Africa, if the rights are to be realised. The article advocates international, regional and national cooperation and calls for a more liberal judicial approach, to ensure that the Protocol’s ‘paperisation’ of the rights of older persons does not lead or continue to lead to their pauperisation.
Oguamanam, Chidi, ‘COVID-19 and Africa: Does One Size Fit All in Public Health Intervention?’ in Colleen M et al Flood (ed), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 543 Abstract: Taking into account the socio-economic, cultural, and political dynamics of Africa, and drawing from a universe of publicly available information, this chapter explores Africa’s experiences with selected aspects of COVID-19 public health and associated response measures. It aims, in part, to identify facets of the contextual dynamics of the continent that warrant creative and fit- for-context public health responses outside of a one-size-fits-all milieu. Also, the chapter identifies and reflects on some real and potential lessons and opportunities from the COVID-19 experience on the African continent that could reposition the continent and enhance its resilience in the face of the first global pandemic in a globalized and technology-driven world order.
Osuji, Onyeka, ‘African Union and Public Health Crises in a Regional Legal Order’’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 41–50 Abstract: In the context of responses to the Covid-19 pandemic, the paper examines the African regional regime for public health crises and disasters. Using the combined analytic lenses of Capability Approach, Institutional Theory, Constructivism, New Regionalism Approach and Actor Network Theory, it focuses on the opportunities offered by, and limitations of, the African Union legal order.
Patterson, Amy S and Emmanuel Balogun, ‘African Responses to COVID-19: The Reckoning of Agency?’ (2021) 64(1) African Studies Review 144–167 Abstract: Although the COVID-19 pandemic had claimed over one million lives globally by late 2020, Africa had avoided a massive outbreak. Patterson and Balogun analyze pandemic responses by the Africa Centres for Disease Control and Prevention and various states collaborating with civil society. They argue that responses display forms of agency rooted in contextually relevant expertise, pan-African solidarity, and lessons learned about health messaging and community mobilization from previous health crises. Yet collaboration has not always been harmonious, as actors have adopted various approaches in their interactions with global health institutions and civil society partnerships, and they have actively debated the use of traditional medicine as a COVID-19 treatment.
Schneider, Marius and Nora Ho Tu Nam, ‘Africa and Counterfeit Pharmaceuticals in the Times of COVID-19’ (2020) 15(6) Journal of Intellectual Property Law & Practice 417–418 Abstract: At a time where counterfeit and substandard medications and critical medical supplies, such as hand sanitizers and face masks, are flooding the world market due to the COVID-19 pandemic, the 2020 report from the Organisation for Economic Co-operation and Development and the European Union Intellectual Property Office on ‘Trade in Counterfeit Pharmaceutical Products’ finding that trade in falsified medicine reached USD 4.4 billion in 2016, threatening public health and safety, while enriching criminals and organized crime, is very timely.
Shaibu, Sheila et al, ‘Duty versus Distributive Justice during the COVID-19 Pandemic’ (2021) 28(6) Nursing Ethics 1073–1080 Abstract: The COVID-19 pandemic exposed vulnerabilities in inadequately prioritized healthcare systems in low- and middle-income countries such as Kenya. In this prolonged pandemic, nurses and midwives working at the frontline face multiple ethical problems, including their obligation to care for their patients and the risk for infection with severe acute respiratory syndrome coronavirus 2. Despite the frequency of emergencies in Africa, there is a paucity of literature on ethical issues during epidemics. Furthermore, nursing regulatory bodies in African countries such as Kenya have primarily adopted a Western code of ethics that may not reflect the realities of the healthcare systems and cultural context in which nurses and midwives care for patients. In this article, we discuss the tension between nurses’ and midwives’ duty of care and resource allocation in the context of the COVID-19 pandemic. There is an urgent need to clarify nurses’ and midwives’ rights and responsibilities, especially in the current political setting, limited resources, and ambiguous professional codes of ethics that guide their practice.
Tamburini, Francesco, ‘The COVID-19 Outbreak in North Africa: A Legal Analysis’ [2021] Journal of Asian and African Studies (advance article, published 13 January 2021) Abstract: North African nations, especially Egypt, Algeria, and Morocco, have been heavily affected by COVID-19 if compared to other African countries. Governments in North Africa took proactive legal measures to manage the virus threat, safeguarding population health, but also triggering repressive and invasive mechanisms that in some cases jeopardized basic freedoms and rights. This work will analyze comparatively the anti-COVID-19 legislations, pointing out how the legislative measures mirrored the level of transition of democracy, the opacity of some regimes, exploitation of the pandemic to foster repressive control, and highlighting the weakness of new democratic institutions unprepared to balance health security and democracy.
Thovoethin, Paul-Sewa and Abdul-Wasi B Moshood, ‘Legislative Effectiveness under COVID-19 in Africa: Striving against Executive Branch Overreach and Underreach during Pandemics’ (2022) 10(2) The Theory and Practice of Legislation 165–185 Abstract: Legislatures across the world fulfil core functions of representation, law-making, and oversight. Thus, governance goals of participation, transparency and accountability are directly related to these three functions. However, the COVID-19 crisis which started in China in late 2019 and spread to other countries in the world in 2020 disrupted these core functions by forcing the shut-down of parliaments out of concern for the safety of their members and the public in most countries in the world. As experienced in most countries during the COVID-19 crisis, legislatures in some instances were bypassed as presidents and prime ministers prioritise a rapid response. Further, there were conflicts in the manner in which responses were made to address the pandemic between the central government and sub-national governments, especially in federal states. Invariably, legislatures in most countries were marginalised, with greater power concentrated in the hands of the executive, especially at the central level of government. Paradoxically, even where a situation is so urgent that normal checks and balances must be suspended in favour of efficient decision-making, it is still crucial that parliaments play the roles of oversight that make democratic systems ultimately more durable, more effective and more just than any of the alternatives. The purpose of this work, therefore, is to examine how parliaments in Nigeria, South Africa and Ethiopia performed their core functions during the COVID-19 pandemic. It offers what parliaments under federal and parliamentary systems can do in order to prepare them to function effectively during an emergency. While it is to be hoped that a similar global crisis will not emerge in the near future or ever, the paper intends preparing legislatures in Africa to be more proactive and effective in dealing with diverse future challenges.
Uppiah, Marie Valerie, ‘The COVID-19 Pandemic: An Opportunity for African States to Review Their Shipping Industry Strategy’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium I: International Trade & International Investment Law & Policy) Abstract: This article aims at examining the significance of international commercial shipping for economic activities worldwide. It also purports to examine the current situation of this industry during the covid-19 pandemic. Furthermore, the article addresses the important role of commercial shipping for African landlocked and coastal States and the need for further developing this sector.
Algeria
Al-Badou, Hana, ‘The Situation of Legal Translation Post COVID-19’ (2023) 3(1) Journal of Languages & Translation 27–39 Abstract: This research focused on the situation of legal translation post COVID-19. A quantitative research design is used with a questionnaire and 50 participants of the Jordanian and Algerian legal translators. The results of the research revealed that legal translation was affected strongly during COVID-19 and that according to the comprehensive ban and there was delay in the issues and legal transactions. But, at post COVID-19, there is a strong demand for legal translation, especially at the first period of stopping the comprehensive ban. Also, most of the legal documents were about immigration transactions to European countries according to the financial situation during and after COVID-19. Also, most of the customers were afraid of COVID-19, and stopped most of their legal operations and transactions until the end of COVID-19, and this directly affected the legal translation. Furthermore, the results revealed that the situation of legal translation became better and more active post COVID-19. As well, the researcher concluded that COVID-19affected negatively on the legal translation and its effects stated to stop post COVID-19. Also, the comprehensive ban caused reduction of the work in the field of translation in general and in the field of legal translation specifically. As well, the active of legal translation backs to the normal situation post COVID-19.
Mohammed, Sidamor and Dr Machouche Mourad, ‘Legal Measures Taken to Combat the COVID-19 Coronavirus Pandemic in Algeria’ (2024) 9(4) Remittances Review 2278–2288 Abstract: The danger of coronaviruses lies in their ease of transmission, which greatly increases the risk of severe respiratory infections. This pandemic, which affected the entire world, required the implementation of initial measures, most of which were taken in the absence of any legal framework. The fear and confusion caused worldwide by the rapid spread of this virus led the political authorities in Algeria to announce a lockdown, followed by the declaration of a public health emergency. As a result, the competent authorities adopted a series of measures to combat the coronavirus, with the aim of limiting its spread and effectively managing the crisis. These measures ranged from the criminalisation of certain behaviours to the restriction of certain freedoms, in particular freedom of movement, freedom of assembly and economic freedom, in order to adapt to the situation and protect public health.
Tamburini, Francesco, ‘The COVID-19 Outbreak in North Africa: A Legal Analysis’ [2021] Journal of Asian and African Studies (advance article, published 13 January 2021) Abstract: North African nations, especially Egypt, Algeria, and Morocco, have been heavily affected by COVID-19 if compared to other African countries. Governments in North Africa took proactive legal measures to manage the virus threat, safeguarding population health, but also triggering repressive and invasive mechanisms that in some cases jeopardized basic freedoms and rights. This work will analyze comparatively the anti-COVID-19 legislations, pointing out how the legislative measures mirrored the level of transition of democracy, the opacity of some regimes, exploitation of the pandemic to foster repressive control, and highlighting the weakness of new democratic institutions unprepared to balance health security and democracy.
Angola
Marreiros Moreira, Tiago and Vanusa Gomes, ‘Parallel Battles’ [2020] (Summer) International Financial Law Review 73–75 Abstract: Reports on how Angola is addressing the challenges of reduced oil prices and the coronavirus pandemic. Considers the privatisation initiative to encourage foreign investment.
Botswana
Mandiyanike, David and Onthatile Olerile Moeti, ‘The Implications of COVID-19 Legislation on Chronic Ailments Patients: Perspectives from Botswana’ (2021) ahead-of-print(ahead-of-print) Transforming Government: People, Process and Policy (advance article, published 4 February 2021) Abstract: Purpose COVID-19 is one of the greatest public health challenges in the 21st century. The World Health Organisation recommended physical distancing to halt the upward trajectory of the infections. Countries including Botswana imposed lockdown for non-essential workers. This paper aims to argue that lockdown as imposed by the Government of Botswana was a necessary measure given the nature of transmission of COVID-19. Design/methodology/approach The paper uses exploratory research to unpack impacts of the novel COVID-19 regulations or be responsive to new concerns by breaking new ground through delving into new problem areas. The paper used a use case to explain a single outcome for a single case. Findings The restriction on the freedom of movement is necessary to protect citizens, particularly, those with chronic illness from contracting the deadly virus. The paper further observes that while the legislative intent of the GOB was to protect those with chronic illnesses from COVID-19, the lockdown resulted in near death experiences for some chronic ailment patients. These experiences result from unfettered discretion of functionaries who were policing and manning the streets and those who are conferred with authority to issue travel permits to seek and obtain medical assistance, lack of public transport and the processes of applications for the permits, which exposed citizens to COVID-19. Research limitations/implications The study was desk based. It may have yielded different results. Lockdowns limited mobility for non-essential services. The full impact of the restrictions and the attendant defaulting was yet to be fully realised. Observing the COVID-19 protocols and bureaucratic requirements for obtaining information from the government offices were major challenges. Practical implications Achieving total lockdown as an end in itself may amount to a pyrrhic victory – the authorities may successfully achieve total lockdown but with heavy costs on gains made in combating ailments. Botswana has fought many other pandemics and chronic illnesses still subsist and need to be catered for. For patients, there is not only the complexity of dealing with one chronic condition but also the work of trying to live ‘normal’ lives in the face of co-morbidity, which can be overwhelming. The COVID-19 pandemic adds to the ‘work’ that patients must do to manage and live with such health conditions and the psychological distress. Social implications Authorities need to be fully aware of the consequences of their actions. Abrasive actions may lead to a higher constituency of discontent. Botswana has had a good track record of being democratic, and this needs to be strengthened. Originality/value The implementation of the COVID-19 regulations particularly the requirement for a travel permit to seek health-care services may hinder access to essential health services and ultimately increase the pressure on emergency services or, at worst, increase mortality. Clear guidelines and sober interpretation of the regulations are necessary. This will also make it easier for the frontline security officers manning the streets to correctly understand the prevailing circumstances. In view of the massive gains garnered in combating chronic illnesses, it is important that such gains are not reversed, while the GOB fights COVID-19. People living with HIV/AIDS, the elderly and people with pre-existing health conditions are known to be at significantly higher risk of developing severe illness when contracting COVID-19. Achieving total lockdown as an end in itself may amount to a pyrrhic victory – the authorities may successfully achieve total lockdown but with heavy costs on gains made in combating other chronic ailments. :
Rapuleng, Thabang, ‘Days of Our Lives in the “New Normal”: Retrenchments in Southern Africa Post COVID-19’ (2020) 20(6) Without Prejudice 56–57 Abstract: The global COVID-19 pandenmic has brought about unprecedented changes to the employment landscape and thrust us into a ‘new normal’. In looking beyond COVID-19, this article seeks to give a cursory overview of what constitutes an employment relationship, to determine whether an employment contract may be terminated on the basis of operational requirements and, lastly, to examine whether employees who have been retrenched on the basis of operational requirements are entitled to severance packages in Botswana, Lesotho, Mozambique and Namibia.
Cameroon
Ebi, Abangma Alain ‘The Negative Impact of COVID-19 on the Enjoyment of Legal Freedoms’ 9(3) International Journal of Social Science and Humanities Research 467–471 Abstract: Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus. Most people infected with the COVID-19 virus experience mild to moderate respiratory illness and recover without requiring special treatment. Older people and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness. The disease was discovered in December 2019. On 31st December 2019, a series of pneumonia cases of unknown cause was detected in the People’s Republic of China (PRC). COVID-19 has caused States to restrict movements, closed down schools, major markets and churches and thus the virus has serious impact on the enjoyment of legal freedoms. Covid-19 has very devastating effects on economic activities generally and thus the urgent need to reduce the spread but the situation in Cameroon is difficult to handle as the negative impacts of the virus are further compounded by lack of support from the government to boost economic activities like supporting small businesses with funding and reducing taxes for big enterprises so as to reduce costs and encourage production. The general objective of this paper is to critically examine the negative impact of COVID-19 on the enjoyment of legal freedoms. One of the main findings of the paper is that Cameroon as a State committed to the protection of its citizens’ rights has ratified treaties protecting human rights of people including legal freedoms and thus to eradicate the impact COVID-19 has on these legal freedoms, the work strongly recommends that as disease outbreaks are not likely to disappear in the near future, proactive international actions are required to not only save lives but also protect economic prosperity.
Gwaibi, Numvi, ‘Cameroon: Parliamentary (Un)Scrutiny amid Multiple Crises’ (2022) 10(2) The Theory and Practice of Legislation 147–164 Abstract: Cameroon’s parliament is constitutionally mandated to perform multiple functions, including the power to make laws. Like most legislatures, parliament is also empowered to perform familiar representative functions during the unfamiliar abnormal context of a crisis. However, parliament’s competence in the legislative domain is severely restricted by the President, who is neither accountable to the Prime Minister nor the legislature. The executive further dominates the legislative agenda by controlling the admissibility criteria of bills in parliament, which gives pride of place to that introduced by the President. Following the outbreak of the Covid-19 pandemic, the government, in line with World Health Organization recommendations, developed a response plan and also rolled out a solidarity fund of one billion francs CFA. Following persistent allegations of mismanagement of Covid-19 funds, and the leaking of an audit report that alleged massive embezzlement of public funds, Cameroon’s parliament summoned the Minister of Finance to account for the financial misappropriations. However, 24 hours to the session dedicated for this exercise, the item disappeared from the agenda. This paper utilises primary and secondary data, legal and judicial texts, among others, to document how Cameroon’s parliament has responded to the multiple crises that have impacted the country over the past decades.
Ndedi, Professor Alain and Dr Jean Noundou, ‘Analysis of the Fight against the Coronavirus (COVID 19) in Cameroon and the Exit Strategies’ (SSRN Scholarly Paper No ID 3585201, 25 April 2020) Abstract: Cameroon encounters security concerns at the North West and South West Regions of the country, and in the East; and the drastic fall in oil revenues with the current price being below $ 13, or less than 15% of forecasts made by the Government, at $ 54 per barrel. To this must be added the economic recession, with recurrent complaints from economic operators regarding the galloping tax pressure and the drying up of tax and customs revenue, due in part to economic partnership agreements with the European Union. Before what can be seen now, there are significant expenditures related to the Football African Cup of Nations (CHAN) and the CAN infrastructure and significant expenditures on security equipment, associated with heavy bilateral and multilateral debt and a precarious health system with the cancellation of 2 national public and national events: Labor day (May 1st) and the Unity day (May 20th), due to the COVID 19 pandemic. Internationally, there is the fall in world growth, and in the main stock markets, due to stagnation, and plant shutdowns linked to the progression of the Coronavirus which deeply and durably affects Western nations. We must add to the above, thousands of deaths from Coronavirus, which is spreading at a rapid rate worldwide; first China, Europe, North America, Russia and Africa are affected. This paper is an attempt to present what the Cameroonian authorities are doing to curve the virus.
Rashid, A, ‘Curbing the Spread of COVID-19 Pandemic Caused by SARSCoV-2: Considering Psychological, Socio-Legal and Ethical Implications on Preventive Measures in Cameroon’ (2020) 3(1) International Journal of Biology and Genetics 1–13 Abstract: Extract from Introduction: Here, we are going to explore the psychological, socio-economic, and ethico-legal concerns of this pandemic, through its implementation of isolation, quarantine, social distancing, constant washing of hands with soap, use of hand sanitizers, staying and working from home, obligatory wearing of masks in public places and national lockdown. The implication of these measures on the life of the population in a low middle income country like Cameroon has been elucidated.
Democratic Republic of Congo
Jacobs, Carolien et al, ‘Containing COVID-19 in the Democratic Republic of the Congo: Government Measures and Women’s Compliance’ (2021) 65(S2) Journal of African Law 287–310 Abstract: This article concerns the unfolding COVID-19 pandemic in the Democratic Republic of the Congo. It analyses the sanitary measures that the government has taken to respond to the pandemic since March 2020, the way these measures are enforced, and the extent to which women comply with the measures. The article draws from desk research and empirical data from the eastern city of Bukavu, where the research team conducted 134 structured interviews. The findings show widespread willingness to comply with some of the main measures because of fear of sanctions, fear of the pandemic and because of trust in the state or church. The article argues that many women hold the state accountable for the success in containing the virus, but also criticize the state for not providing livelihood assistance during the state of emergency. Further research is needed to assess the impact of COVID-19 on state legitimacy.
Egypt
Abuzaid, Riham, ‘Legal Characterization of the Challenges Faced by the Construction Industry During Covid-19 And Devaluation of the Egyptian Pound’ (Masters Thesis, The American University in Cairo, 2022) Abstract: With all the challenges this past decade has inflicted on the economy on a global scale, Egypt had its share with two major events, starting with the Egyptian pound devaluation against the U.S dollar in 2016 and currently the emergence of the COVID-19 pandemic. These major events instigated the interference of the legal/contractual sectors in the construction market to find solutions that range from agreeable to stringent to protect the assets of their beneficiaries. Both events are impactful and require extensive analysis to determine and classify each situation. This thesis addresses the implementation of standard internationally acknowledged legislative acts used in Construction Contracts but are yet to experience practically for the first time in decades, whether under Hardship ‘Théorie de l’imprévision’, Force Majeure or Change in Legislation. The purpose of this thesis is to explore and analyse the various categories which these two events are under to enable them to survive during the countries’ sudden events. A detailed research is conducted to study the impact of the devaluation of the Egyptian pound and COVID-19 in the Construction projects in Egypt to categorize each event from a legal and Contractual perspective.
Alzoubi, Mohammad Abel Khaliq and Muhammad Azami Masoud Abu Moghli, ‘The Legal and Procedural Impact of the Corona Pandemic on Procedural Deadlines and Litigation: Comparative Study’ (2022) 15(4) Baltic Journal of Law & Politics 1427–1442 Abstract: The region and the countries of the world as a whole were exposed to a global epidemic of Covid 19 at the beginning of the year 2020, which greatly affected all areas of political, economic and health life. The World Health Organization declared a state of emergency in the world, so countries made partial or total closures and curfews. The Jordanian legislator declared a state of emergency and activated Defense Order No. (5) Of 2020 in accordance with the provisions of Defense Law No. 13 of 1992, and closed all activities except for the medical field. In the judicial field, litigation and court procedures stopped from March 18, 2020 to May 25, 2020, and that, created a legislative vacuum in regulating legal relations, exceeding legal periods, and a defect in procedural deadlines in light of this emergency circumstance. Here, many questions arise about how to address the legal impact on judicial procedures that were suspended as a result of the curfew, the dates of the sessions that were postponed, and the impact on the implementation law in both Jordanian legislation compared to Egyptian legislation.
Ellaboudy, Ahmed, ‘When Emergency Is Permanent: Egypt’s Legal Response to COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 411 Abstract: For almost half a century, emergency regulations have been used in Egypt for the purpose of allowing the executive authorities to repress any form of opposition. Therefore, when a ‘real’ emergency took place in the form of the COVID-19 pandemic, Egypt was unable to develop alternative tools to deal with it. The historic reliance on emergency powers as the default way of governing for decades has affected the whole legal culture of Egypt. The only kind of emergencies that informed Egyptian practice in the use of emergency powers were related to security concerns. Nevertheless, legislative amendments to existing emergency law and other procedures were introduced to respond to the economic damage and public health concerns arising from COVID-19. Legal interventions by civil society organisations played an essential role in enhancing the right to health during the pandemic. Further, Egypt conducted the Senate and House elections during the time of the COVID-19 crisis. While the House elections were not possible to be delayed because of the tight constitutional deadline, the Senate elections could have been postponed to minimise health risks. In summary, Egypt’s approach to the COVID-19 crisis was the adoption of the minimum possible actions, while not changing the way the system functions and aiming to quickly return to the ‘normal’ mode of governing.
Elsaman, R and M Elsaman, ‘A Legal Perspective on Covid-19 in Egypt: The Impact on Civil and Administrative Contracts’ (2021) 18(2) Transnational Dispute Management (TDM) [unpaginated] Abstract: Governments have started to take actions to mitigate the impact of the COVID-19 outbreak worldwide. Such measures have resulted in the closure or at least interruption of businesses since it has become challenging for them to meet their contractual obligations. A frequently asked question is whether the Coronavirus outbreak could excuse contracting parties from performing their contractual obligations. Within this context, the legal practice usually triggers the application of two main doctrines, namely: force majeure and imprévision that find their origins in the French law. While the first usually results in suspending the contractual obligations due to the impossibility of performance, the second often leads to alleviating such obligations. This Article explains the challenges facing the performance of contracts in Egypt in light of the global pandemic of COVID-19. The Article briefly provides the reader with an initial understanding of the main features of the Egyptian legal system. In particular, this Article highlights the differences between civil and administrative contracts and the role of the Egyptian judiciary in forming each type of contracts, to facilitate the understanding of the legal implications of the Coronavirus outbreak within this context. The Article then explains the two common doctrines that could be used to cancel, suspend, or amend both civil and administrative contracts in light of the pandemic; force majeure and imprévision. The Article distinguishes between each of the two theories and their legal consequences when applied to civil and administrative contracts. The Article also explains the other doctrines applied by the Egyptian judiciary, particularly in administrative contracts, which are the Fait Du Prince Theory; and the Material Adverse Events Theory. The Article concludes with analyzing the legal implications of Covid-19 in light of the presented legal doctrines in both civil and commercial contracts versus administrative contracts in Egypt.
Elsayed, Reda Mohammed and Sara Elsayed Kasem, ‘Effect of COVID-19 Pandemic and National Lockdown on the Medicolegal Aspects of Trauma in Sohag Governorate: A Comparative Retrospective Study’ (2022) 20(1) Zagazig Journal of Forensic Medicine 1–12 Abstract: Corona virus (COVID-19) infection, which was first reported in China in 2019, has rapidly spread across the entire world. On 24 March 2020, the Egyptian government started a national lockdown trying to decrease the spread of infection. The aim of the work: To study the medicolegal aspects of trauma cases attended Sohag University Hospitals during the COVID-19 pandemic and national lockdown in comparison with those in the same period in the preceding year 2019. Subjects and methods: The study is a retrospective study included trauma cases attended to Sohag University Hospitals from 1/4/ 2020 to 30/5/ 2020 (COVID group) and those from 1/4/ 2019 to 30/5/ 2019 (Pre-COVID group). Results: The total number of cases was 424 in COVID group and 427 in Pre-COVID group. The majority of trauma was in the age groups (Conclusion: COVID-19 has disrupted social structures worldwide. These disruptions directly and indirectly affected trauma admissions at Sohag University Hospitals. In spite of the total number of trauma cases did not change but there was a change in the causes of injury and outcome of the case in COVID group in comparison with Pre-COVID group.
Ghannam, Alaa, Ayman Sebae and Dina Makram-Ebeid, ‘Healthcare Protection Policies during the COVID-19 Pandemic: Lessons towards the Implementation of the New Egyptian Universal Health Insurance Law’ (American University in Cairo, Faculty Journal Articles, Social Protection in Egypt: Mitigating the Socio-Economic Effects of the COVID-19 Pandemic on Vulnerable Employment, 2021, 31 January 2021) Abstract: On March 11th 2020, the World Health Organization (WHO) declared the coronavirus a global pandemic. The spread of the virus in many countries has exceeded the capabilities of the traditional healthcare systems and has challenged government plans to contain it. The COVID-19 pandemic arrived in Egypt at a time when the first steps in the implementation of the newly ratified law on social health insurance were taking place. Law number 2 for the year 2018 saw the first steps of its implementation in Port Said governorate. As the realisation of the law is proceeding in other governorates, the pandemic and the policies it brought impacted the implementation process of the law. This paper attempts to provide an assessment of the policies taken to challenge the spread of the COVID-19 pandemic. It investigates the effects of the health system’s response to the pandemic on the implementation of the new health insurance law. The paper also aims at providing lessons from the management of the first phase of the pandemic, lessons that could be capitalized upon during the implementation of the health insurance law and in the health system reform in general. Understanding the effects of these policies and drawing lessons from the management of the first phase helps identify future challenges, opportunities and pitfalls in providing full comprehensive healthcare coverage for all Egyptians during the realization of this law. The paper draws its analysis, conclusions and recommendations from a number of sources including documentation of government policies towards the COVID-19 pandemic from January 7th 2020 until August 23rd 2020, desk review of data on the effects of these policies on disease morbidity and mortality, results of community assessments of healthcare services before, during and after the implementation of the new health insurance law in Port Said and input from key stakeholders. These key stakeholders include representatives at the different authorities in charge of the implementation of the new health insurance law and the COVID-19 response effort, service providers at different levels of healthcare service provision, service beneficiaries and service users and experts, policy makers and analysts. Based on the study’s findings, key recommendations are provided in managing the COVID-19 pandemic, implementation of the new health insurance law and beyond. :
Ghitani, Sara A et al, ‘The Ethical and Medico-Legal Challenges of Telemedicine in the Coronavirus Disease 2019 Era: A Comparison between Egypt and India’ [2021] Clinical Ethics (advance article, publishes online 29 November 2021) Background: In the coronavirus disease 2019 era, doctors have tried to decrease hospital visits and admissions. To this end, telemedicine was implemented in a non-systematic manner according. The objective of this study was to assess the current knowledge and attitudes of physicians in Alexandria, Egypt, and Punjab, India, toward telemedicine and its ethical and medico-legal issues. Method: A cross-sectional study was implemented using an anonymous self-administered questionnaire carried out over two months (July and August 2020). A four-point Likert scale was used to collect data about background knowledge, training in telemedicine and ethical and medico-legal issues in telemedicine practice. Results: The questionnaire was completed by 175 Egyptian and 51 Indian physicians from different specialties. A significantly higher percentage of Indian physicians practiced telemedicine than Egyptian physicians during the coronavirus disease 2019 era. Although most physicians had no specific training or licensing to practice telemedicine, most of them practiced telemedicine through their social media accounts. Ethical violations involving waiving patient consent were detected. Significant ethical violations to doctors, for example, blackmail, defamation, hate speech, accusations in a court and violations of privacy, were observed. Indian physicians (39.2%) and Egyptian physicians (24%) thought the penalties should be lower in telemedicine than in traditional practice. Finally, most participants would like to continue using telemedicine after the coronavirus disease 2019 era but with improvements.Conclusions: Coronavirus disease 2019 changed the acceptance of telemedicine by physicians. Many ethical and legal issues need to be addressed and clarified using formal training before implementation and standardization of telemedicine services. :
Hassan, Mozn and Helen Rizzo, ‘The Sexual and Gender-Based Violence Epidemic Meets the COVID-19 Pandemic: Survivors’ and Advocates’ Narratives in Egypt’ (2023) 47(2) International Journal of Comparative and Applied Criminal Justice 147–165 Abstract: This research traces activism over the last 30 years against sexual and gender-based violence with a focus on survivors’ and advocates’ narratives in Egypt. We argue that several focusing events in Egypt and the support of transnational advocacy networks over the last decades have galvanised the efforts of activists and citizens of good will to mobilise around these issues. Egyptian feminist mobilisation during the pandemic brought to the public sphere the untold stories of the forms of violence that occurred through online and social media platforms. While social media and other online tools hold the promise of becoming ‘a new public sphere’ for social movements, the current political atmosphere still has low tolerance for dissent both offline and online. However, the new generation of feminist activists have showed strength in facing difficult social and political challenges which gives hope for future social movement mobilisation on the horizon.
Rosenhouse, Judith, ‘Legilinguistic Features of a Semantic Field: COVID-19 in Written News/Media in Hebrew and Arabic’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 859–882 Abstract: This paper examines and compares some legilinguistic features in news/media reports in Hebrew, and in Arabic in Israel and Egypt during the COVID-19 pandemic in 2020 and the beginning of 2021. The goal was to find frequent and innovated expressions in the communication media during the COVID-19 period. The research question was, since there are linguistic differences between these language-varieties: would differences be found also on the legilinguistic level? Hebrew and Arabic were studied because of their different status. In Israel, Hebrew is the dominant official language, while Arabic is a minority language. In Egypt, Arabic is the official and dominant language. The material was collected from two news/media channels in each of Modern Hebrew and Arabic in Israel, and two from Egypt. Selected news texts were analyzed and examples of their lexical and syntactic elements are presented. The texts revealed similar methods for controlling the pandemic, and some linguistic (lexical and syntactic) differences. The comparison with legilinguistic literature suggests that the findings of these Hebrew and Arabic texts’ features during the pandemic differ from features discussed in other studies.
Salem, Hanan, Reham Nafad and Sarah Taha, ‘Legal Response of Physicians Towards Workplace Violence during COVID-19 Pandemic in Egypt: A Cross Sectional Study’ [2022] Zagazig Journal of Forensic Medicine (advance article, published online 16 May 2022) Abstract: Workplace violence (WPV) is defined by World Medical Association as ‘an international emergency that undermines the very foundations of health systems and impacts critically on patient’s health’. The physicians are specifically vulnerable for such acts from patients or even their relatives. WPV has detrimental effects on both health professionals and the quality of health care services administered. Aim: to highlight the problem of assault against doctors and their legal response towards it, generally in medical practice and specifically during COVID 19 pandemic. Methodology: A cross sectional study was done through anonymous self-structured internet-based questionnaire survey on 300 physicians. It included different data as regards sociodemographic data, occurrence of bullying, type of assault and response of the physician towards such assault. Results: About 55% of responders claimed previous exposure to verbal or physical violence, nearly 19% faced verbal violence and 14% faced physical violence ,about 15% notified head of the department while only 9.7% notified police. Almost 80% of the responders were not satisfied by actions taken after notification , and 23% were exposed to bullying due to working during Covid era. All responders (100%) believe that media affect how people deal with physicians. Conclusion: Workplace violence against doctors is escalating vigorously. Under-reporting and lack of security support are the main issues in solving this catastrophic health system problem.
Salem, Nora, ‘COVID-19 Related States’ Obligations under International Human Rights Law: An Assessment of Egypt’s COVID-19 Response through a Gender Lens’ [2022] Australian Journal of Human Rights Advance article, published online 20 January 2022 Abstract: The COVID-19 pandemic presents a challenge to all spheres of life—health, economy, social security, livelihood and education. These challenges are particularly severe for women worldwide, and exacerbated for women in the Middle East and North African regions due to pre-existing gender restrictive social norms. In addition, challenges have been compounded by low rates of testing and reporting, high levels of extreme poverty and regional conflicts. Despite considerable gender equality gains in the region throughout the last decade, the pandemic threatens to reverse hard-won gains by confining women back to the domestic sphere, while increasing their vulnerability to gender-based violence. In line with most countries worldwide, the Egyptian government adopted a variety of containment measures to limit the spread of the virus on 14 March 2020. Those containment measures were accompanied by certain mitigation measures to reduce discriminative impacts on women. Against this backdrop, this paper examines Egypt’s COVID-19 response against the existence of an international obligation to adopt containment measures to limit the spread of COVID-19 as well as the existence and scope of an international obligation to adopt accompanying mitigation measures to reduce disproportionate impacts on women along women’s health, gender-based violence, women’s livelihood and girls’ education. :
Shebaita, Maged, ‘COVID-19 and the State of Emergency in Egypt’ (SSRN Scholarly Paper ID 3597760, 10 May 2020) Abstract: The nightmare of COVID-19 outbreak spread all over the world by the announcement of WHO on March 14th, 2020 that COVID-19 is a pandemic. The word PANDEMIC is not just an ephemeral word; it led to massive consequences in the legal field especially with regard to the governmental powers, not only in Egypt but also in other democratic countries. The overarching target of this research is to highlight the measures, espoused by the Egyptian government to confront COVID-19 and the constitutional restrictions over its power.Part 1: The State of Emergency and its Restrictions in the Egyptian LawPart 2: COVID-19 as a State of Emergency and the Governmental Measures Part 3: The Legal Restrictions on the Governmental Measures. :
Shebaita, Maged, ‘The Impact of COVID-19 on the Performance of Administrative Contracts in Egypt Comparative Study’ (SSRN Scholarly Paper ID 3638076, 29 June 2020) Abstract: Any country undertakes several actions to fulfill the public needs of it’s people or to achieve economical and financial targets. One of the most famous actions is contracts, the state is usually engaged in several contractual relationships to achieve the aforementioned targets. In Civil Law countries, the Administration concludes two types of contracts, Public Law Contracts and Private Law Contracts. The overwhelming opinion in the Egyptian Administrative Law, jurists and judgments are that there are 3 main criterion to distinguish administrative contract from civil and commercial contracts, which had been explained in the judgment of the Supreme Administrative Court ‘It is recognized that the Administrative Contract is the contract concluded by a public law person with the intention of managing of public utility and for showing its intention to adopt the Public law method, which includes a clause or conditions that are unfamiliar to private law contracts.’ . Through the performance of Administrative Contracts certain obstacles appeared, some of them are foreseeable and others unforeseeable. After the announcement by WHO on 13th March 2020, that COVID-19 is a pandemic, several states declared the state of emergency due to the outbreak of COVID-19 which caused many economical and financial disasters, to both public and private sectors. In this research I will focus on the outbreak of COVID-19 as unforeseeable events which led to overturn the financial and economical equilibrium of the Administrative Contract in Egypt. This is what we will illustrate together in the following pages. :
Tamburini, Francesco, ‘The COVID-19 Outbreak in North Africa: A Legal Analysis’ [2021] Journal of Asian and African Studies (advance article, published 13 January 2021) Abstract: North African nations, especially Egypt, Algeria, and Morocco, have been heavily affected by COVID-19 if compared to other African countries. Governments in North Africa took proactive legal measures to manage the virus threat, safeguarding population health, but also triggering repressive and invasive mechanisms that in some cases jeopardized basic freedoms and rights. This work will analyze comparatively the anti-COVID-19 legislations, pointing out how the legislative measures mirrored the level of transition of democracy, the opacity of some regimes, exploitation of the pandemic to foster repressive control, and highlighting the weakness of new democratic institutions unprepared to balance health security and democracy.
Eswatini (formerly Swaziland)
Shongwe, Musa Njabulo, ‘Eswatini’s Legislative Response to COVID-19: Whither Human Rights?’ (2020) 20(2) African Human Rights Law Journal 412–435 Abstract: Having been confronted with the COVID-19 pandemic, the Kingdom of Eswatini has had to adopt both soft and hard response measures. The constitutional emergency response framework had not envisaged the type of emergency brought about by COVID-19, forcing the state to enact extraordinary regulatory measures. Unprecedented emergency powers have been conferred on state functionaries. Questions have arisen as to the nature of these emergency powers, the manner in which these powers have been exercised and the absence of special oversight mechanisms. The response measures and regulations have had an unparalleled impact on lives and livelihoods of Emaswati. This article explores the nature of emergency powers in the laws of Eswatini, and the particular effects of the COVID-19 regulations on human rights. This article commences with an analysis of constitutional emergency powers in Eswatini and the limitations thereof, and considers the question of why the state did not invoke a constitutional state of emergency. The article proceeds to examine the nature of statutory emergency powers under the Disaster Management Act, and considers whether there are effective legal limitations on the exercise of executive authority and effective safeguards against the abuse of power. The article then deals with the particular impact of the COVID-19 response legal framework on human rights protection. In this regard, the article advances examples of situations where rights have been infringed. Finally, the article proposes that the state’s response measures should continuously endeavour to mitigate the long-term impact on human rights.
Ethiopia
Aoyagi, Chie, ‘Effects of COVID-19 on Regional and Gender Equality in Sub-Saharan Africa: Evidence from Nigeria and Ethiopia’ (IMF Working Paper No 2021/169, 1 June 2021) Abstract: The labor structure in sub-Saharan Africa is characterized by a high share of informal employment in the rural agricultural sector. The impact of COVID-19 on female employment may not appear to be large as the share of such employment is particularly high among women. Nevertheless, widespread income reduction was observed both in rural and urban households. This could worsen the opportunities for women as husbands’ control over the household resource is the norm. The paper also finds that rural children struggled to continue learning during school closures. Gender-sensitive policies are needed to narrow the gap during and post-pandemic.
Ayalew, Dessie Tilahun, ‘The Application of Force Majeure and Hardship Clauses in Ethiopia and China in Light of International Law in Situations of COVID19 Pandemic: The Law and Practice’ (2023) 4(3) Journal of Marketing Management and Consumer Behavior 1-25 Abstract: COVID-19 pandemic has multiple consequences and knocked multiple disciplines after its occurrence throughout the globe. Among the disciplines touched by the pandemic is the role of law presented as an excuse for the responsibility of non-performance of owing to the pandemic. The COVID-19 pandemic highly affects international commitments, such as international investment contracts and other similar undertakings. Therefore, this paper questioned the status of international law in giving immunities for states for non-performance of international obligations during the pandemic periods. In doing so, the paper tried to compare and contrast the legal system of China and Ethiopia by taking international commercial law as a mirror. The findings revealed that most jurisdictions give immunities for the non-performance of the states’ commitments owing to the COVID-19 pandemic.
Dikale, Edilu, ‘Insights on Ethiopia’s State of Emergency against COVID-19: A Descriptive Overview’ [2021] Annals of Bioethics & Clinical Applications (forthcoming) Abstract: Ethiopia confirmed its first COVID-19 case on March 13, 2020. At the moment of writing, (11 August 2020), over 24, 000 cases of COVID-19 are confirmed and the pandemic is rising at an unprecedented rate. Ethiopia has started taking various legal and informal measures prior to its first confirmation announcement on March 13, 2020 and since then. Among others, Ethiopia set up the Ministerial Committee led by the PM on February 29 and the committee gave a press release on March 16 announcing a postponement of ‘large gatherings and meetings including a sporting event, limiting religious institutions and places of worship to limit gatherings and closure of all public and private schools except higher learning (HI) and later on the HI was also totally closed to combat the crisis. The committee announced that the security sector to enforce measures of ceasing large gatherings to maintain social distancing’ on 23 March. Similar measures were also taken by Amhara, Southern, and Oromia regional states among the nine member states of the Ethiopian federation though without legal gazette publication. On the top of that State of Tigray declared a State of Emergency (SoE) on March 25, 2020. In a similar vein, the federal government declared SoE by the Council of Ministers (CoM) on April 8, followed by the approval of the House of Peoples Representative (HPR) on April 13, 2020. Subsequently, the Council of Ministers also adopted its implementation regulation. But the implications of these measures on human rights and freedoms, social, economic, and political rights of the public were not strictly thought and studied. Thus, the main objective of this piece was to investigate the implications of the above measures on human rights and rule of law principles. Accordingly, it sheds some light on the substantive and procedural content of SoE in light of legality principle, proportionality, and transparency, the competence of government’s power at a different level to mention the least in contrast to measures taken in various jurisdictions.
Getnet, Asnakech, ‘Pandemic Restrictions in Ethiopia: Impact on Family Law Cases in Amhara Regional State Courts’ [2022] Family Court Review (advance article, published 9 March 2022) Abstract: This article discusses the impact of pandemic restrictions on the family court system in Ethiopia. As lack of technological infrastructure made shifting to online services impossible, court services remained in-person. Public health measures required a drastic reduction in case hearings in order to allow social distancing. Both federal and regional state courts were partially closed from early March 2020 to end of September 2020 and only entertained cases of ‘urgent’ nature that affected life, liberty, and public safety. The article focuses on strategies adopted by family courts in Amhara Regional State with respect to its impacts on litigating parties in such courts. It argues partial closure of court services disrupted access to justice in family law cases and increased vulnerability of women and children. This article proposes alternative strategies other than partial closure of court services.
Mengie, Legesse, ‘COVID-19 and Elections in Ethiopia: Exploring Constitutional Interpretation by the House of the Federation as An Exit Strategy’ (2021) 25(1) Law, Democracy & Development 64–89 Abstract: Over 60 countries have postponed their elections due to COVID-19. As an election is the primary means by which government power is assumed in constitutional democracies, the postponement of elections has posed this question: what exit mechanisms do constitutional systems have to address a power vacuum caused by unforeseen circumstances like COVID-19? In other words, how can a legitimate government that adheres to the rule of law, a constitution more specifically, be ensured when elections cannot be held? While some countries held elections amid COVID-19 with precautions, others postponed them. Ethiopia is one of those countries which have postponed their elections. The postponement of Ethiopia’s general elections sparked a debate about how the power vacuum caused by the pandemic should be addressed. After deliberating on the matter, Ethiopia’s lower house approved constitutional interpretation by the upper house as the best solution. The upper house, through interpreting the Constitution, extended the term limits of the federal and regional governments. This article intends to address the question posed above by examining constitutional interpretation by the upper house as an exit strategy. It explores constitutional interpretation by this house and its implications for the rule of law and legitimacy of government. I conclude that comprehensive understanding of the Constitution offers an answer to the conundrum. The upper house has adopted a holistic interpretation approach and that is commendable. However, the ruling that allows the government to stay in power for an unknown time and the partiality inherent in the house compromise the merit of its interpretation.
Yismaw, Alemayehu, ‘An Overview of the Legal Implications of COVID-19 on Performance of Contractual Obligations in Ethiopia’ (2021) 5(1) The International Journal of Ethiopian Legal Studies 111-130 (forthcoming) Abstract: Since the first COVID-19 case was confirmed, the government of Ethiopia has taken measures to contain the spread of the virus, and thereby, ease the socio economicimpact of the pandemic. Although these emergency measures were swift, as time went, they remain short lived due to various reasons. Businesses are forced, inter alia, to cut back production and service delivery, lay off employees temporally, lack working capitalmaking it difficult to continue operating. Businesses are especially challenged to meet their contractual obligations and keep their commercial relations worthy. As a result, this article overviews the effects of COVID-19 pandemic on the performance contractual obligations and shows the legal relief adopted in Ethiopian law to escape the liabilities of resulted damage. To that effect, the article employs doctrinal research method and hence, assesses domestic laws, books, journal articles, web information, and foreign jurisprudences. Thus, it argues that the COVID-19 pandemic affects the performance of contractual obligations but parties may use force majeure or if not, vary contractual terms to save themselves from the pitfalls of the current pandemic.
Gabon
Le Roux, Matthieu, Olivier Bustin and Carolina Reis, ‘Gabon: Priority Measures’ [2020] (Summer) International Financial Law Review 69–72 Abstract: Gabon responded quickly to COVID-19, leveraging off its experience with ebola and cholera. This article reviews the results of the government’s actions and what the pandemic says about Gabon’s future economic development.
Nguema, Ismaelline Eba, ‘The Rule of Law Tested by Covid-19: The Case of Gabon’ (2023) 12(1) Global Journal of Comparative Law 70–100 Abstract: In Gabon, the covid-19 crisis was accompanied by the adoption of emergency measures to respond to the health emergency caused by the pandemic. According to the texts in force, these measures should be necessary, non-discriminatory and strictly proportional to the health catastrophe. However, the governmental measures were accompanied by an infringement of fundamental rights and freedoms. Also, they have sometimes been taken outside of any legal framework. Thus, the objective of this article is to study the conformity of health emergency measures to the rule of law in Gabon. The method used to conduct this study is based on comparative law. It consisted mainly in comparing the legal responses to covid-19 in Gabon with those used in the country that seems to have inspired them, France. Similarly, an analysis was made of all the decisions rendered by the Gabonese constitutional court. This study shows that government measures have had a deleterious effect on the rule of law, further weakening its structure. The security response to the covid-19 crisis and the increase in inequality due mainly to government measures to combat covid-19 could have damaging effects that could extend well beyond the period of the pandemic.
The Gambia
Bah, Tijan L et al, ‘How Has COVID-19 Affected the Intention to Migrate via the Backway to Europe and to a Neighboring African Country? Survey Evidence and a Salience Experiment in The Gambia’ (NOVAFRICA Working Paper Series No 2107, 2021) Abstract: The COVID-19 pandemic has resulted in border closures in many countries and a sharp reduction in overall international mobility. However, this disruption of legal pathways to migration has raised concerns that potential migrants may turn to irregular migration routes as a substitute. We examine how the pandemic has changed intentions to migrate from The Gambia, the country with the highest pre-pandemic per-capita irregular migration rates in Africa. We use a large-scale panel survey conducted in 2019 and 2020 to compare changes in intentions to migrate to Europe and to neighboring Senegal. We find the pandemic has reduced the intention to migrate to both destinations, with approximately one-third of young males expressing less intention to migrate. The largest reductions in migration intentions are for individuals who were unsure of their intent pre-pandemic, and for poorer individuals who are no longer able to afford the costs of migrating at a time when these costs have increased and their remittance income has fallen. We also introduce the methodology of priming experiments to the study of migration intentions, by randomly varying the salience of the COVID-19 pandemic before eliciting intentions to migrate. We find no impact of this added salience, which appears to be because knowledge of the virus, while imperfect, was already enough to inform migration decisions. Nevertheless, despite these decreases in intentions, the overall desire to migrate the backway to Europe remains high, highlighting the need for legal migration pathways to support migrants and divert them from the risks of backway migration.
Nabaneh, Satang and Basiru Bah, ‘The Covid-19 Pandemic and Constitutional Resilience in The Gambia’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 201–221 Abstract: This chapter provides an assessment of The Gambia’s journey through the coronavirus (Covid-19) pandemic. It examines the country’s constitutional resilience in the face of the public health emergency which shook the country’s health, economic and constitutional setup. This chapter provides an overview of the pandemic by giving a narrative of the trajectory of events in terms of the number of cases, recoveries and fatalities registered. It also provides an overview of how the government responded and the constitutional and legal implications of government measures in response to the pandemic. This chapter argues that the exercise of emergency powers vested in the President by the 1997 Constitution and other emergency laws resulted in the limitation of fundamental rights and freedoms. These limitations were largely in accordance with international law and similar to those put in place in other jurisdictions. This chapter argues that while the constitutional framework of The Gambia enables the country to deal with public health emergencies, uneven application of the law may result in unfair limitation of rights of some sectors of society.
Ghana
Abdulai, Emmanuel Saffa, ‘Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 3–18 Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone. :
Addadzi-Koom, Maame Efua, ‘A Survey on E-Learning Experiences of Law Students during Covid-19 in Ghana’ (2022) The Law Teacher (Advance article, published online 13 June 2022) Abstract: As a result of the Covid-19 pandemic, e-learning is no longer a choice but a need. In Ghana, the Covid-19 induced e-learning continues to form an integral part of higher education in most universities. Focusing on law students’ perspectives on e-learning in Ghana, this study used online survey data from 204 respondents at the Kwame Nkrumah University of Science and Technology (KNUST), Faculty of Law. Descriptive statistics were used to analyse quantitative data while thematic analysis was used to analyse qualitative data. The findings revealed, among other things, that although most law students enjoyed e-learning, they preferred blended learning to cater for the shortcomings of the former. The study argues that blended learning is a viable option for legal education in Ghana. As the first study on law students’ experiences of e-learning in Ghana during the pandemic, the study is timely and significant. The recommendations that follow from the study could be beneficial to legal education managers in Ghana and Africa.
Addadzi-Koom, Maame Efua, ‘Quasi-State of Emergency: Assessing the Constitutionality of Ghana’s Legislative Response to Covid-19’ (2020) 8(3) The Theory and Practice of Legislation 311–327 Abstract: On 15 March 2020, the President of the Republic of Ghana addressed the nation on anti-coronavirus measures which took effect immediately. He directed the Attorney-General to submit an emergency legislation to Parliament and the Minister for Health to issue an immediate Executive Instrument to regulate the relevant measures. Five days later, Parliament passed the Imposition of Restrictions Act, 2020 (IRA) after a voice count in its favour. A few days, thereafter, the President issued an Executive Instrument (E.I. 64) pursuant to the IRA. The minority members of Parliament, some legal scholars and interested Ghanaians expressed their disapproval of the procedures leading to the enactment of the IRA as well as its nature, form and content. The contentions cover multiple constitutional and legal grounds including the procedural propriety of using a voice vote in Parliament for emergency legislation, the necessity of a new emergency legislation and the time limit for the new emergency legislation. Essentially, these issues point to assessing the overall constitutionality of the law-making procedures and legislative provisions of the IRA. This is the focus of this paper. The paper argues that the IRA stands unconstitutional from the very beginning of its intended existence. The paper concludes that while the IRA is currently operational, its continued existence is challengeable under the 1992 Constitution of Ghana, thus, there is a window of opportunity to right the wrong. :
Agyeman-Budu, Kwaku and Bettina Kwarteng, ‘Rule of Law and Human Rights During the COVID-19 Pandemic in Africa: Reflections from Ghana’ in Maame Efua Addadzi-Koom, Michael Addaney and Lydia A Nkansah (eds), Democratic Governance, Law, and Development in Africa: Pragmatism, Experiments, and Prospects (Springer, 2022) 505–527 Abstract: In the wake of the COVID-19 global pandemic, the Government of Ghana unlike many other African States did not formally declare a state of emergency. Rather, it enacted the Imposition of Restrictions Act, 2020 (Act 1012), which for all intents and purposes was an emergency legislation. This chapter examines the impact, if any, of COVID-19 on the rule of law and human rights in Ghana. The chapter therefore discusses the legal framework for dealing with emergencies under the Constitution and analyses Ghana’s response to the pandemic within that context. The effect of Act 1012 as well as other emergency legislation that were resorted to during the pandemic are thus explored to ascertain their consistency or otherwise with the rule of law in general, and fundamental human rights in particular.
Amarh, Gertrude Amorkor, ‘Assessing the Impact of Covid-19 on Teaching and Research: A Ghanaian Perspective’ [2022] International Journal of Constitutional Law (advance article moac065) Abstract: The Covid-19 pandemic in diverse ways affected the traditional modes of instruction and learning at all levels of education. Prominent among the innovations necessitated by the pandemic was the increased use of virtual methods of teaching and learning. For many learners and instructors in parts of the world, however, expensive internet data costs, lack of digital learning tools, and similar other challenges meant that the benefits of virtual teaching and learning could not be fully reaped. This article recounts my experiences of the pandemic as a Ghanaian early career researcher. It shares the experiences of law students in my University, obtained through administered questionnaires. The article also analyses how these experiences unearthed deep socio-economic inequalities among learners and lecturers alike, and how these inequalities impacted effective teaching and learning during the pandemic. Although these disparities had long existed, the conditions created by the pandemic only made them more glaring. While analyzing the institutional support received from my University, the article makes a case for the active involvement of all stakeholders in bridging the divide.
Asamoah, Kwame and Bennet Kwadzo Nyadzi, ‘An Examination of the Role Played by Ghana’s Legislature in the Management of the COVID-19 Pandemic’ (2022) 10(2) The Theory and Practice of Legislation 203–222 Abstract: In the wake of the recently emerged COVID-19 pandemic, legislatures were regarded as one of the important government institutions that can help cushion nations against the economic and social disruptions inflicted by the health crises, given the important roles they play in policy-making within political systems. This paper examines the roles played by Ghana’s legislative institution in the management of the COVID-19 pandemic. The paper further explores some of the challenges to legislative activities during the height of the pandemic. From a content analysis of a variety of literature drawn from Parliamentary Proceedings, online journal articles, official documents, and news from credible media outlets, we found that Ghana’s legislative institution was crucial to the country’s management of the pandemic as they played important roles such as passing COVID-19 related laws, financial oversight, and providing a check on executive actions. The main challenge to parliamentary activities was the demand for rapid legislation, which weakened Parliamentary oversight and scrutiny functions. The study makes some recommendations to strengthen legislative responses to future pandemics.
Boateng, Festival Godwin, Saviour Kusi and Samuel Ametepey, ‘COVID-19 Lockdown Defiance, Public “Indiscipline”, and Criminalisation of Vulnerable Populations in Ghana’ (SSRN Scholarly Paper No ID 4001957, 25 November 2021) Abstract: Behavioural economics has provided much source of inspiration for public policy in the COVID-19 era. Such is evidently the state of discussion in Ghana, where Ghanaians’ so-called stubborn resistance to positive behavioural change is increasingly the target of public and popular criticisms. This paper argues that further to legitimising the police violence and extrajudicial sanctions meted out to ‘undisciplined’ violators of the restrictions, the indiscipline narrative leaps too quickly from an account of the personal morality/attitudes of Ghanaians to the collective action of mass-defiance of the restrictions without taking adequate account of the range of structural constraints that made it difficult for the majority of the people to comply with the restrictions. The mass defiance of the restrictions is best understood in the context of the unequal outcomes of the broader policy processes and practices, and the historical-institutional power dynamics around them that put some people in criminogenic situations in the country. It is important that media and policy analyses of public defiance of the restrictions and social problems in the country generally move beyond the simplistic notion of indiscipline to dissect how deliberate bias against the needs of the majority operates, and is institutionalised in policy and practice in ways that undermine their commitment to rules and regulations. :
Eyongndi, David Tarh-Akong and Faith N Opara, ‘Arbitrating During and Post Covid-19: Nigeria and the Imperativeness of Adopting a Legal Framework on Third-Party Funding: Lessons from Selected Jurisdictions’ (2022) 6(1) Strathmore Law Journal 181–211 Abstract: The advent of Covid-19 has led to the inability of parties fulfilling their commercial and contractual obligations. This inability has led to disputes and has negatively affected the financial fortune of many persons and businesses so that they may not afford or solely bear the cost of funding arbitration. To ensure that parties’ intention to arbitrate their disputes is not frustrated, Third-party funding (TPF), an acceptable practice in jurisdictions such as the United Kingdom (UK), Singapore, and Hong Kong, is a possible solution. Unfortunately, TPF is unknown to Nigerian law as it offends the common law doctrines of champerty and maintenance. This article, through a doctrinal methodology, examines the legislative effort towards institutionalising TPF in Nigeria and the ethical concerns advanced against it. The article argues that these concerns are more imaginary than real. Hence, they ought not to deter the adoption of TPF in Nigeria for intra- and post-Covid-19 funding of arbitration. It discusses the practice of TPF in the UK, Hong Kong, Singapore, South Africa, Ghana, and France in which these ethical concerns have been dealt with and draws lessons for Nigeria.
Gawu, Delali A and Richard Obeng Mensah, ‘COVID-19 Contact Tracing and Privacy Rights in Ghana: A Critical Analysis of the Establishment of Emergency Communications System Instrument, 2020 (EI 63)’ (2021) 65(S2) Journal of African Law 361–373 Abstract: In December 2019, the world woke up to the news of a novel coronavirus (COVID-19). Since then, governments across the globe have deployed various measures to contain the spread of the disease. The government of Ghana, among other measures, issued the Establishment of Emergency Communications System Instrument, 2020 (EI 63) to establish an emergency communications system to aid contact tracing during public health emergencies. This executive instrument has been criticized for illegally ‘legalizing’ the breach of the privacy rights of electronic communications network subscribers in Ghana. This article critically analyses EI 63 in relation to the right to privacy of communication enshrined in Ghana’s 1992 Constitution. It argues against the constitutionality of EI 63, calls for its revocation and replacement with an act of Parliament enacted with due regard for Ghana’s legislative framework on the protection of the right to privacy of communication. :
Nkrumah, Bright, ‘The (Il)Legality of Ghana’s Covid-19 Emergency Response: A Commentary’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 311–339 Abstract: The first quarter of 2020 will be remembered as a time when one virus redefined the norms of the human race. Like their global compatriots, Ghanaians have not been spared from the wrath of Covid-19. Confronted by the spread of the pandemic, the Ghanaian government declared a state of emergency and adopted a new framework, the Imposition of Restriction Act (IRA), to contain the rate of infection. This was despite the existence of three instruments that provide emergency powers for the President. Against this backdrop, this chapter surveys the steps the President took in declaring the state of emergency, the legal avenues that could have been used to manage social distancing, the threat the IRA poses to Ghana’s constitutional dispensation during and after the Covid-19 era, and how this threat could be averted.
Norman, Ishmael, Emmanuel Kpeglo and Raymond Agalga, ‘Cross-Sectional and Medico-Legal Investigations of Covid-19 Response, Ghana’ (2020) 2(6) European Journal of Medical and Health Sciences 587 Abstract: From the 12th of March 2020, Ghana took bold steps against Covid-19, aimed at controlling the spread among the population, protecting against community infections, treating those with the disease and ensuring public trust in the healthcare delivery system. This cross-sectional survey, assessed the effectiveness of Ghana’s risk communication, legal framework and response approaches to the Covid-19 Pandemic. The first part was a Cross-Sectional approach. The authors used data collected on-line via a self-reported questionnaire between 16th March and 16th April from [127] participants. Differences in mean scores and other factors associated with awareness; as a function of risk communication; to Covid-19, knowledge of safety protocols, and practices towards the disease, were conducted using univariate and multivariate data analytical methods. The second approach was a literature review of Ghana’s legal framework existing prior to the outbreak of Covid-19 and those enacted by Parliament during the emergency period towards the management of the pandemic. A content analyses of the legal framework, to assess official compliance with the framework in relation to the aim of this study was conducted. The majority of the study participants were knowledgeable about how Covid-19 was transmitted. An independent samples t-test was performed to determine if a difference existed between the mean scores of COVID-19 knowledges for males and females. The outcome variable was found to be normally distributed and equal variances are assumed based upon results of Levene’s test (F (125) = 0.097, p-value = 0.756). There was no significant difference in knowledge scores (with minimum = 1, and maximum = 3) for males (mean = 1.61, standard deviation = 0.665) and females (mean = 1.56, standard deviation = 0.698; t- value t (125) =0.374, p-value = 0.709, two-tailed). The magnitude of the difference in the means (mean difference = 0.054, 95% confidence interval: -0.234, 0.343) and the effect size was very small (Cohen d = 0.08). The independent samples t-test was also performed to test the hypothesis that males and females were associated with statistically significant different COVID-19 awareness mean scores. The test showed no significant difference in the awareness scores for males and females. The results from the content analyses of the legal framework show there was lax adherence of government to the legal framework for Pandemic response on these dimensions: Planning and Coordination; Surveillance, Situation monitoring and Assessment; Prevention, Containment and Management; Communications; and Social Mitigation. It further shows that neither the existing legislation nor the Executive Instruments, E. I. 63 - 66, and 164 directed at Covid-19 administrative and epidemiologic controls, have helped to stop the spread of Covid-19, considering the uptick of new infections of Covid-19. Covid-19 has exposed the lack of effective risk communication modalities in Ghana and the government’s lack of adherence to the legal framework on disasters and emergencies in general, a vacuum which is filled by social media. :
Owusu-Dapaa, Ernest, Richard Obeng Mensah and Delali Adzo Gawu, ‘Seeking a Panacea to the COVID 19-Induced Constitutional Crisis in Ghana: Comparative Insights from Natural and Positive Legal Theories’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 33–52 Abstract: Although Ghana’s 1992 Fourth Republican Constitution deals with public emergencies, the recent Covid-19 pandemic exposed a significant lacuna in the Constitution regarding presidential and parliamentary elections. A conflict between strict adherence to the Constitution’s tenets to hold elections at set times and the need to safeguard the lives of citizens arose but the Constitution provides no explicit panacea to the problem. Meanwhile, the inability to hold elections within stated timelines is likely to result in the constitutional crisis of power vacuum. This calls for the interpretation and deployment of the Constitution in a manner that resolves the crisis occasioned by the Covid-19 pandemic and other such occurrences in the future. Using the doctrinal approach to legal research, the paper analyses this Covid-19-induced constitutional crisis from the perspective of legal theory. It comparatively explores insights from natural law theory and legal positivism to critically evaluate the philosophies underpinning various responses to the constitutional crisis. It argues that finding a practical and lasting solution to a constitutional crisis as the one presented by the Covid-19 pandemic will require a balancing of legal philosophical approaches to enable adherence to law and reason.
Tuffuor, Kwadwo Addo and Felix Awuah, ‘Interrogating the Imposition of Restrictions Law during the Covid-19 Pandemic in Ghana’ (2022) 2(1) UCC Faculty of Law Journal 1–20 Abstract: The world was confronted with both legal and political issues after the announcement by the World Health Organisation (WHO) on March 11, 2020 of COVID-19 as a pandemic. The declaration led many national governments to implement restrictions to combat the spread of the disease and also to enable them make preparations for the health systems to deal with the emergency on hand. Even though, fundamentally the COVID-19 pandemic is seen as a public health emergency, it has presented a challenge to human rights and the rule of law, which are all crucial in times of national crisis. In Ghana, the government enacted the Imposition of Restrictions law together with other Executive Instruments to enable it deal with the crisis. The need to strike a balance between the public health emergency and the rule of law has led many advocates to question the constitutionality of the legislation that was introduced during the pandemic. This paper aims at interrogating the legitimacy of these laws and whether the government could have explored other available alternatives in dealing with the pandemic, than promulgating a new legislation.
Kenya
Abiero, Joseph and Helen Amunga, ‘Access to Electronic Information Resources in Law Libraries during Covid-19 Period: The Case of Office of the Director of Public Prosecutions Library, Kenya’ [2024] Alexandria: The Journal of National and International Library and Information Issues (advance article, published online 8 April 2024) Abstract: The study examined the level of access of electronic resources among library users during the outbreak of Covid-19 pandemic. Qualitative and quantitative data were collected. Document review were further used to strengthen the findings of the study. On the use of electronic resources, the findings revealed there was increased use of electronic resources during Covid-19 pandemic, confirming that electronic resources were essential in sustaining library services during the pandemic. The results indicated that effective use of electronic resources requires library users possess skills to use the access equipment such as computers and Internet facilities. The findings further indicated that there is need for the library staff to create awareness of the available resources among library users. At the same time the study revealed that some of the challenges to the use of electronic resources were lack of computers, poor Internet connectivity and inadequate search skills which was linked to lack of elaborate training.
Ahmed, Leyla, ‘Legal Practice in Kenya: Embracing Automation and E-Judiciary’ in Suresh Nanwani and William Loxley (eds), Social Structure Adaptation to COVID-19: Impact on Humanity (Taylor & Francis, 2024) 122-131 [OPEN ACCESS E-BOOK] Abstract: The confirmation of the first COVID-19 case in Kenya led to the scaling down of most government services, including service delivery in the judiciary. The focus of this chapter is the introduction of e-judiciary and how it changed the practice within the legal profession.
Brady, Emily et al, ‘The Impact of COVID-19 on Survivors of Human Trafficking in Kenya: A Participatory Approach’ (2021) 6(2) Journal of Modern Slavery 247–266
Di Bari, Michele, ‘Let Judges Speak for Themselves: Can Comparative Constitutional Case Law Help Conceptualize Universal Standards in the Fight against COVID-19?’ [2021] (1) Dirittifondamentali.it 200–221 Abstract: This contribution provides an examination of recent constitutional case law concerning the judicial review of emergency measures adopted in the fight against the COVID-19 pandemic. In particular, the aim of this comparative analysis is twofold: On the one hand, its purpose is to verify whether Supreme Courts were able to engage with the limitation of fundamental rights without being too deferential as it could be expected during emergencies; on the other hand, it attempts, to demonstrate that it is possible to conceptualize universal standards for the protection of fundamental rights during health emergencies through what is called comparative constitutional case law (CCCL). The analyzed case law belongs to different legal orders, namely, Kenya, Kosovo, and Slovenia; however, all the cases concern freedom of movement and its legitimate (possible) limitations. The analyses of different cases are provided separately, and in the last paragraph some conclusive hypotheses have been drawn and left open for a future debate. :
Durojaye, Ebenezer and Robert Doya Nanima, ‘From Muhammed and Others to De Beer and Others: Striking the Balance between Public Health Measures and Human Rights during Covid-19 Era in South Africa’ (2021) 47(1) Commonwealth Law Bulletin 175–194 Abstract: This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed. :
Haldimann, Orianna and Lukas Biedermann, ‘Distribution of Face Masks in Kakuma Refugee Camp during a Pandemic: Legal Obligations and Responsibilities’ (2022) 22(2) African Human Rights Law Journal 451–475 Abstract: This article argues that the inhabitants of the Kakuma refugee camp are in a special relationship with the state, resulting in an increased duty of care of the latter towards the former. The effect of this increased duty of care ultimately results in a positive obligation to provide face masks to the inhabitants to protect them from COVID-19, based on the right to the best attainable standard of health and the right to life. The article then turns to the question of who is responsible to provide such face masks in the camp. After first analysing the situation on site, the article argues that a shift of responsibility of the host state to the UN Refugee Agency took place.
Harrington, John, ‘Indicators, Security and Sovereignty during COVID-19 in the Global South’ (2021) 17(2) International Journal of Law in Context 249–260 Abstract: The spread of COVID-19 has seen a contest over health governance and sovereignty in Global South states, with a focus on two radically distinct modes: (1) indicators and metrics and (2) securitisation. Indicators have been a vehicle for the government of states through the external imposition and internal self-application of standards and benchmarks. Securitisation refers to the calling-into-being of emergencies in the face of existential threats to the nation. This paper contextualises both historically with reference to the trajectory of Global South states in the decades after decolonisation, which saw the rise and decline of Third-World solidarity and its replacement by neoliberalism and global governance mechanisms in health, as in other sectors. The interaction between these modes and their relative prominence during COVID-19 is studied through a brief case-study of developments in Kenya during the early months of the pandemic. The paper closes with suggestions for further research and a reflection on parallel trends within Global North states. :
Iheme, Williams and Sanford Mba, ‘Coping with the COVID-19 Pandemic: A Comparative Study of the Capabilities of the Kenyan and Nigerian Insolvency Frameworks’ (2020) 6(2) Journal of Corporate and Commercial Law & Practice 112–138 Abstract: The COVID-19 pandemic has undeniably ravaged the global economy and plunged many countries in Africa, including Kenya and Nigeria into an economic recession. This article departs from the premise that credit is the lifeblood of market systems. Accordingly, the credit and insolvency laws of both countries must be adjusted in certain ways during and after the pandemic, in order to enable them to cope with the dire economic challenges resulting from the pandemic. The article identifies some material defects in the Insolvency Act 2015 (Kenya) and the Companies and Allied Matters Act 2020 (Nigeria), and argues that these defects will debilitate a meaningful economic recovery from the pandemic. The paper shows the lack of suitability of their existing insolvency frameworks, as well as some aspects of the public law: it proposes a number of tailor-made recommendations that benefitted from the experiences of certain other common law jurisdictions. :
Imalingat, Tara, Nerima Were and Allan Maleche, ‘Political Opportunism and Pandemic Mismanagement in Kenya’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 181 Abstract: More than a year after the first COVID-19 case was confirmed in Kenya, the country had still not declared a state of emergency. The pandemic, and Kenya’s response to it, exposed a blatant disregard for the rule of law and human rights and a derogation of constitutional principles. This chapter examines the authorities’ response, arguing that when the executive opted not to declare emergency powers it acted outside of the constitutional framework and undermined the rule of law. The effect of this conduct was the heightened erosion of human rights, especially of marginalised communities, and the deepening of inequality. The chapter concludes by offering a set of recommendations that may strengthen Kenya’s constitutional democracy and its response to future emergencies.
Ismail, Abdiqani, ‘Tax Collections in Times of Ongoing Pandemic in Kenya: Challenges and Policy Options’ (SSRN Scholarly Paper No ID 3639018, Social Science Research Network, 30 June 2020) Abstract: COVID-19 pandemic is presenting unprecedented crisis, primarily of health and human tragedy but has also far reaching economic ramification. The crisis is disrupting millions of people’s livelihood, with severe impact on business and especially small and informal businesses. Across the Globe governments are taking decisive actions to protect their economies and affected sectors. One such sector that is likely to be disrupted is the process of tax collection and administration. Although we are in the early stages of the potential impact, tax agencies must focus and prioritize their response in order to make the most of the limited time and resources available. To address these needs and help inform the responses, this paper presents - An analysis of COVID-19 impacts on the collection of various forms of taxes, in which the paper postulates that although reduction of tax collected is to be expected across the board, income tax and corporate tax are likely to be hit hard due to combination of factors such as job losses, pay reduction and filing of net losses. - Challenges expected to be faced by the tax agency in collecting tax during ongoing pandemics, the paper argues that tax agencies are likely to encounter several challenges including reduction in tax compliance, disruption to tax filing schedules, reduction in the ability to collect tax and complications arising out of adopting to the government economic stimulus. - A framework for policy response by the tax agency and the government to mitigate the challenges. These Policy actions are drawn from a global scan of interventions implemented by various agencies and governments. The suggested responses include increase tax payer assistance, clear communication and making use of digital platforms. The paper concludes by sending clear message that tax agencies and government needs to double down their efforts to safeguard their tax base and help their tax payers cope with the uncertainties brought by the current pandemic. :
Kabira, Nkatha and Robert Kibugi, ‘Saving the Soul of an African Constitution: Learning from Kenya’s Experience with Constitutionalism during COVID-19’ (2020) 20(2) African Human Rights Law Journal 436–461 Abstract: On 27 August 2010 Kenyans celebrated the promulgation of a new Constitution. This Constitution aimed at fundamentally transforming the governance framework through far-reaching institutional, administrative, legal and policy reforms. Ten years later this Constitution was put to the test when the government of Kenya reported the first COVID-19 case. In this article the authors argue that even though Kenya put in place a transformative Constitution intended to consolidate the rule of law, democracy, human rights and governance, the government’s response to the COVID-19 pandemic questioned the transformative character of the Constitution and exposed inherent contradictions embodied in the Constitution. The article demonstrates that the Constitution is a double-edged sword, a site of tension and contradiction, on the one hand, and a site of hope and transformation, on the other. :
Kemboi, Leo Kipkogei, ‘Kenya’s COVID-19 Policy Responses Furthering Inequality’ (SSRN Scholarly Paper No ID 3750751, 17 December 2020) Abstract: The government response in appropriating more resources, public health responses, social protection measures and virtual learning in Education have excluded persons at different levels. Failure of government to respond appropriately have led to additional costs which cannot be recovered hence furthering economic inequality. :
Kemboi, Leo Kipkogei, ‘Public Choice Analysis of Kenya COVID-19 Response Policies’ (SSRN Scholarly Paper No ID 3750753, 17 December 2020) Abstract: The biggest takeaway is that policymakers need to craft policies that are easier to implement but gives the desired results. Parliament, as the main oversight institutions, is supposed to query policies being fronted by the executive branch, but this has not been the case. Policies that require force to enforce are prone to rent-seeking and should not be considered. :
Kemboi, Leo Kipkogei, ‘Two COVID-19 Lessons That Were Long Overdue to Kenya’s Justice Sector’ (SSRN Scholarly Paper No ID 3625502, Social Science Research Network, 12 June 2020) Abstract: The two decisions made by policymakers in Kenya’s because of COVID-19 were timely but were bound to happen. they are direct economic benefits for reducing the prison population and use of technology in courts. If the Prison population is reduced at least by 10%, the prison population will reduce by 22,372 prisoners. Using the GDP Per Capita as of 2018, we estimate that income gained would be equivalent to Ksh 4.3 billion whereas a 30% prison population reduction would be 67,115 prisoners and equivalent to Ksh 12.9 billion. The mechanism of technology must allow for more accountability. :
Kieti, Denis Ndolo, ‘Flattening the Insolvency Curve: The Adaptability and Responsiveness of Kenya’s Corporate Insolvency Law in Tackling Pandemic and Economic Depression Insolvencies’ (LLM Thesis, Strathmore University, 2022) Abstract: The covid-19 viral pandemic has negatively affected global economic growth prompting governments across the world to set up fiscal and monetary policy interventions to mitigate the adverse effects of the pandemic on their economies. Kenya, as a consequence, similarly set up economic and financial support measures to forestall economic depression. Unlike some major economies such as the U.K. which modified their insolvency regimes to forestall pandemic insolvencies, there were no such amendments made to the Kenya’s Insolvency Act. This is despite the unpredictability presented with new more deadly covid-19 variants coming up, which has further dampened the pace of economic recovery. Utilising doctrinal and comparative research methods, this thesis has examined whether Kenya’s corporate insolvency law is adaptive and responsive in the event of an emergency and whether the objectives of the Insolvency Act, (Act No.18 of 2015) have been achieved following the ongoing pandemic. It has evaluated the adaptability and responsiveness of Kenya’s insolvency law to support companies during an economic depression; the kind brought about by the current pandemic. By referring to the vital elements of an efficient and effective insolvency framework outlined in the UNCITRAL Legislative Guide on Insolvency Law, it has been confirmed that Kenya’s current insolvency law is inadaptable and unresponsive to the unprecedented challenges of the pandemic or other emergency, such as an economic depression. Therefore, by examining how the United Kingdom has responded to the emergency, it has been established that Kenya can borrow critical lessons. The thesis has laid out recommendations on emergency policy and legislative reforms that could make the Kenyan insolvency framework better suited to supporting businesses during emergencies. There is limited research on insolvency law and legal reforms in Kenya touching on the pandemic and the thesis contributes to this literature on Kenyan corporate insolvency law by outlining the legal framework as it currently is and its limitations. The study contributes knowledge by analysing the theoretical framework underpinning insolvency law. It also outlines the international insolvency benchmarks by the IMF, World Bank and UNCITRAL and how these can influence Kenya. This literature on Kenyan corporate insolvency law is limited, and on this, the thesis is enlightening.
Kilonzo, Josephat Muuo, ‘Addressing Covid-19: A Test of Kenya’s Constitutional and Democratic Resilience’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 111–144 Abstract: Kenya confirmed its first case of Covid-19 in March 2020. In a bid to control the spread of the virus, the executive issued directives that, inter alia, discontinued learning in all educational institutions, suspended travel into Kenya, imposed a dusk-to-dawn curfew, curtailed movement in and out of selected regions and closed places of worship and entertainment. The government then proceeded to issue legislative and executive directives that reduced taxes in order to mitigate the economic losses occasioned by the containment measures. The judiciary closed down courts, resorting instead to electronic management of cases. This chapter discusses Kenya’s responses to the Covid-19 pandemic with the aim of understanding whether they meet its constitutional and human rights obligations and what they mean for the country’s constitutional and democratic resilience.
Kilonzo, Kethi D, ‘Playing Tag with the Rule of Law: Balancing Fundamental Rights and Public Health in Kenya in the Shadow of COVID-19’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions) Abstract: The first case of Covid-19 infection within Kenya’s borders was reported on 13th March 2019. The global pandemic has brought the Rule of Law in Kenya to a cross-roads as the government attempts to strike a delicate balance between the health and safety of the public, on the one hand, and their economic and social well-being, on the other. The choices have been tough, and the outcomes have been mixed. All of its policies and regulations have been met with mixed reactions as well as political and legal challenges. Covid-19 has led to many fundamental human rights and freedoms being temporarily stripped by governments and authorities across the globe. Kenya has been no exception. Since 13th March 2020, the fundamental rights to freedom of association, movement, access to justice, access to administrative action, property, assembly, demonstrations, grouping and picketing, have been suspended, impeded and or affected. In Kenya, such restrictions have a constitutional foundation in Kenya’s 2010 Constitution. :
Marang’a, Moses, Paul Kimalu and Margaret Ochieng, ‘Effect of COVID-19 Pandemic on Resolution of Cases in Courts: The Kenyan Judiciary’ (SSRN Scholarly Paper No ID 3851886, 30 March 2021) Abstract: The Constitution of Kenya and the Judiciary Strategic Plan (2019-2023) identifies improved access to, and expeditious delivery of justice as key result areas for the Judiciary, a public institution that is the custodian of justice and pivotal for socio-economic wellbeing of the society. With the onset of the COVID-19 pandemic in Kenya, diverse interventions were instituted both at the Judiciary headquarters and at court level. The aim of the interventions was twofold. First was to control the spread of the disease through courts and second was to ensure continuity in service delivery. Despite the constitutional dictate, institutional aspiration, and interventions that were undertaken, the resolution of cases in courts, one of the indicator of access to justice, reduced during the pandemic period. Specifically, the number of cases that were resolved in all courts reduced from 469,359 in the financial year 2018/19 to 289,728 cases in 2019/20 when COVID-19 disease was first reported in Kenya. Could this reduction be attributed to the pandemic or to some other underlying factors, and by what magnitude if at all?. Were the instituted measures able to impact on resolution of cases?. To answer these questions, the study first sought to establish the measures that were undertaken by Judiciary. This entailed a review of interventions that were undertaken at Judiciary headquarters through the use of circulars, notices and guidelines that were issued from time to time, as well as collection and analysis of primary data from Heads of Stations and Deputy Registrars of courts on measures that were carried out at court level. Secondly, the study sought to determine the effect of COVID-19 pandemic and the consequent measures on resolution of cases in courts. This was realized through the use of two-step system Generalized Method of Moment’s regression that employed secondary panel data. The findings were that the courts had undertaken numerous measures to control the spread of the pandemic to ensure continuity of service delivery amidst the pandemic. Further, COVID-19 pandemic had adversely affected resolution of cases in courts despite the numerous measures that were instituted. Drawing from these findings, diverse policy actions and recommendations have been proposed with an aim of enhancing resolution of cases in courts during the pandemic period and beyond. :
Miyandazi, Victoria, ‘An Equality-Sensitive Approach to Delivering Socio-Economic Rights during Crises: A Focus on Kenya’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 335–352 Abstract: This chapter discusses how the dire situation of vulnerable groups in Kenya is exacerbated in times of crises, such as the Covid-19 pandemic. Loss of employment, food shortages, and the high cost of living, coupled with the lack of equality-sensitive interventions by the government, have led to a rise in the number of Kenyans living in absolute poverty. This is despite the fact that Kenya’s 2010 Constitution contains multiple provisions on the protection of the socio-economic rights of vulnerable groups, with Article 20(5)(b) going even further to require the prioritization of the needs of vulnerable groups when implementing the socio-economic rights in Article 43 of the Constitution, to ensure their widest possible enjoyment. The chapter argues that, as much as Kenya’s laws provide the necessary legal framework and impetus for applying equality-sensitive approaches to delivering socio-economic rights and to avoid reinforcing inequality in times of crisis, they are not implemented by those in charge. The challenge, therefore, is the lack of application of actual laws in practice to facilitate the implementation of socio-economic rights to address the adverse effects of crises and their aftermath. In the final analysis, the chapter emphasizes that the needs of the most vulnerable in society should be prioritized when the state is implementing initiatives to respond to crises. This is what is constitutionally mandated in Kenya. To achieve this may mean the enactment of laws to best tackle contempt of court orders and blatant disregard of the law.
Morang’a, Emmaqulate K, ‘COVID-19 and the State of Socio-Economic Rights in Kenya: Why We Must Take These Rights Seriously’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions, 26 May 2020) Extract: Due to lack of specific permanent measures to promote socio-economic rights, the capacity of the Government to cushion Kenyans against the economic harshness of COVID-19 is being put into test. Despite the government having formulated some measures especially in form of tax reliefs, basic needs of most vulnerable families are being met through donations from the corporate Kenya as philanthropy. For human dignity, in the bare minimum, a country’s people should be able to meet their basic human needs, which include shelter and food. Also noting the Government’s efforts through the Big 4 Agenda, the biggest question remains the executive’s accountability in its implementation. As long as the hands of the judiciary on enforcement of socio-economic rights remain tied, socio-economic rights remain a dream for many Kenyans especially in times of disasters. If we are to take anything home from COVID-19, is that socio-economic rights are basic human needs and we must take them seriously. :
Muriungi, Muriuki and Naomi Musau, ‘Inequality Dimensions of Kenya’s Responses to COVID-19’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 273–294 Abstract: This chapter assesses Kenya’s COVID-19 policy responses with a view to exploring the dynamics of inequality of these responses. It highlights the pernicious effects of the various COVID-19 responses during the pandemic, particularly on the vulnerable, tracing the same to the structuring of the economy and failure to undertake a socio-economic impact assessment of the responses. The chapter argues that the policy responses, taken together, partially challenged the neoliberal framework, at least in so far that they involved a more active role on the part of the state. The chapter then calls for reassertion and mainstreaming of these responses beyond the post-COVID era.
Njiri, Kenneth, ‘Mental Health and Covid-19: The Right to Mental Health during the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3598916, 12 May 2020) Abstract: The covid-19 pandemic has disrupted the lives of people in the world. Kenya has not been left alone. As a result, jobs have been lost. Families are apart. There is panic and worry in the world. As a result, the mental health of persons is at risk. In my paper, I argue that there is need for the government of Kenya to safeguard the mental health of its citizens. Further, a multi-sectoral approach should be adopted in ensuring the mental wellness of the people. :
Njiri, Kenneth, ‘The Tenants’ Right to Housing in Kenya: Is There Need to Address This Issue during the Covid-19 Pandemic’ (SSRN Scholarly Paper No ID 3582391, 22 April 2020) Abstract: The Covid-19 pandemic has changed the lives of people in the world. Most of the governments have imposed restrictive measures on movement and association to ensure that the disease does not spread further into their countries. The government of Kenya has imposed a curfew to restrict movement of the disease. Further, there are regions in Kenya where movement into and out of those regions has been curtailed. The livelihoods of Kenyans from all walks of life have been distracted. Jobs have been lost. The economy of the country is dwindling. Kenyans have been advised to stay at home. The prevailing circumstances have forced some of the Kenyans to stay at home.The directive to stay at home to fight the pandemic presents a unique situation in the country. It requires people to stay indoors to reduce the transmission of the illness. The ball falls into the court of each and every citizen to seek shelter. However, due to the loss of jobs, most of the Kenyans wonder whether they will have shelter. The tenants, who have no source of income at the moment, wonder where they will get the money to pay their landlords to ensure they are not kicked out of their houses. Further, due to the declining economy, most of the tenants do not have sufficient cash to pay their rent. Failure to pay rent will render them homeless. Is there need to address this issue? Should we allow the landlords to deal with the tenants who do not pay rent? In my paper, I seek to address this delicate issue. To begin with, I will balance the rights between the landlord and the tenant. Later, I will recommend on what is to be done to ensure that this issue is resolved amicably. :
Nyamutata, Conrad, ‘Funerary Rites and Rights of the Dead: Jurisprudence on Covid-19 Deaths in Kenya, India and Sri Lanka’ (2023) 12(1) Global Journal of Comparative Law 36–69 Abstract: Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.
Nyawa, Joshua Malidzo, ‘Human Rights and Covid-19 (Corona Virus) in Kenya: Is the Law Silent?’ (SSRN Scholarly Paper No ID 3587768, 28 April 2020) Abstract: During times of pandemics, the law is not silent. Unlike the suggestion by Schmitt et al that there are times where there exists a state of exception, this paper argues that the constitution of Kenya does not permit such a scenario. Even in emergencies, the law applies. This paper looks at the measures and regulations adopted by the executive in a bid to address the Corona problem and tests them against the constitution of Kenya. :
Ogendi, Paul, ‘The Law and Ethics of Coronavirus Disease (Covid-19) in Kenya’ (2020) 4(2) Journal of Conflict Management and Sustainable Development 1–42 Abstract: The COVID-19 pandemic is a public health emergency that raises many ethical and legal issues. Of significance is that the pandemic requires emergency public health measures to be put in place by the government significantly disrupting the lives of many. Governments should however remember that emergency public health measures must be legally sound in accordance with their right to health obligations under international law, national constitution and legislation. Suffice to note, the international community has an obligation to assist and cooperate with each other towards fighting the disease. The health providers who are currently at the forefront in fighting the pandemic are being faced with numerous challenges especially in developing countries due to lack of adequate resources. This however should not be an excuse for violating ethical principles put in place including respecting the confidentiality, privacy, and autonomy of the patients. Lastly, the community has a role to play in making sure that they follow lawful orders and guidelines put in place including social distancing, washing hands and staying at home. :
Ominde, Daniel, ‘Challenges Posed by the Outbreak of COVID-19 and the Need for a Presidential Directive to Protect the Poor from the Whims of Unscrupulous and Inhuman Landlords’ (SSRN Scholarly Paper No ID 3703335, 25 April 2020) Abstract: This paper was written when the COVID-19 pandemic had just started spreading in Africa, and specifically Kenya. The paper took into account the fact that Kenya is a third world country, where many people live from hand to mouth. It also factored in the reality that many Kenyans are engaged in the informal sector which was struck so hard by the pandemic. The paper acknowledged that those effects negatively impacted on the ability of many Kenyan to pay their rents and meet other basic needs at the same time. Many Kenyans, therefore, faced eviction, from their residents as they had to strike a delicate balance between rent and food.This paper sought to encourage the President of the Republic of Kenya to issue an Executive Order that would have seen the landlords and tenants (who could not afford rent during the pandemic) enter agreements to pay rent after the pandemic. Additionally, the paper required such Order to also trigger agreement between real estate investors and mortgagors to suspend the payment of mortgage for debtors who could not afford the same during the pandemic. These arrangements were meant to ease the satiations of many Kenyan who were deprived of socio-economic rights under Article 43 of the Constitution of Kenya 2010. :
Onyango, Kevin Otieno, ‘Non-Performance: The Impact of COVID-19 on Contractual Obligations in Kenya’ (SSRN Scholarly Paper No ID 3707988, 9 October 2020) Abstract: The measures taken to counter and contain COVID-19 in Kenya in terms of curfews, restrictions of movement, closure of businesses and schools and even ban on international travel. Many parties entered into contracts without foreseeing the drastic effects of COVID-19 on the performance of their contractual obligations. This paper analyses the impact of COVID-19 on the performance and enforcement of contractual obligations in Kenya. :
Ratemo, Tom Junior, ‘Intensifying Legal Protection against Human Rights Violations in the Covid-19 Era : A Case Study of Kenya, Uganda and Tanzania’ (2020) 7(2) _Journal of Comparative Law in Africa_ Abstract: The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations. :
Roudik, Peter et al, ‘Freedom of Expression during COVID-19’ (Law Library of Congress Legal Report, September 2020) Abstract: This report, prepared by the research staff of the Law Library of Congress, surveys legal acts regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. The report focuses on recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan. :
Shaibu, Sheila et al, ‘Duty versus Distributive Justice during the COVID-19 Pandemic’ (2021) 28(6) Nursing Ethics 1073–1080 Abstract: The COVID-19 pandemic exposed vulnerabilities in inadequately prioritized healthcare systems in low- and middle-income countries such as Kenya. In this prolonged pandemic, nurses and midwives working at the frontline face multiple ethical problems, including their obligation to care for their patients and the risk for infection with severe acute respiratory syndrome coronavirus 2. Despite the frequency of emergencies in Africa, there is a paucity of literature on ethical issues during epidemics. Furthermore, nursing regulatory bodies in African countries such as Kenya have primarily adopted a Western code of ethics that may not reflect the realities of the healthcare systems and cultural context in which nurses and midwives care for patients. In this article, we discuss the tension between nurses’ and midwives’ duty of care and resource allocation in the context of the COVID-19 pandemic. There is an urgent need to clarify nurses’ and midwives’ rights and responsibilities, especially in the current political setting, limited resources, and ambiguous professional codes of ethics that guide their practice.
Stanley, Otieno Omondi, ‘The Doctrine of Force Majeure’ (SSRN Scholarly Paper No 4496031, 30 June 2023) Abstract: This paper seeks to explain the doctrine of force majeure and highlights cases where it has been successfully and unsuccessfully been used as a defense for breach of contract. The center of this paper is on the landmark judgement issued by the Kenyan Court of Appeal which recognized COVID 19 as a force majeure event.
Lesotho
Andreoli, Enrico, ‘The Rule of Law under the Threat of the Pandemic. Echoes from the African Constitutional Justice’ (2021) 46(1) DPCE Online 1445–1554 Abstract: The ACB & Ors v Prime Minister & Ors case deals with a case of prorogation of Parliament of Lesotho made by the Prime Minister, which was an obvious attempt to avoid a vote of no-confidence. And such attempt was cautiously hidden behind a claim to be protecting human lives from the threat posed by the spread of Covid-19. :
Makateng, David, ‘Implications of Social Adaptation in the Kingdom of Lesotho during 2019-NCoV Pandemic’ (2020) 2(3) Electronic Research Journal of Social Sciences and Humanities 165–183 Abstract: This paper expatiates on the outbreak of coronavirus (2019-nCoV) in a city named Wuhan in China using the Kingdom of Lesotho as a case study. It is the essence of this paper to break, analyze, and deduct the concept of coronavirus and to present its causes and how it can be thwarted from spreading. A research gap under investigation of this paper originates from an argument from two Lesotho students studying in the People’s Republic of China who were conversing about the readiness of Lesotho in the context of the 2019-nCoV pandemic. The nature of this paper argues on the implications and readiness of the social adaptations in the Kingdom of Lesotho in relation to the 2019-nCov pandemic. Results in this paper subscribe to the theoretical background of 2019 Novel Coronavirus, the framework of family coronavirus, an outbreak of 2019-nCoV in the Kingdom of Lesotho, the effects of lockdown and prevention over the spread of Coronavirus (2019-nCoV) in Lesotho. The method of approach conducting this paper is a qualitative meta-analysis. Data is collected from different sources and reliable journals, reliable websites, and interviews. This paper explores with a succinct summary of the outbreak of 2019-nCoV in Lesotho. The closure of schools and the impact of how small businesses moved most of the small businesses to bankruptcy are also discussed in this paper. Lesotho remained corona-free until May 2020 since 2020-nCoV emerge in Wuhan, China. This study concludes by putting forward the measures which the Kingdom of Lesotho should subscribe in relation to the fight coronavirus (2019-nCoV pandemic. :
Shale, Itumeleng, ‘Implications of Lesotho’s COVID-19 Response Framework for the Rule of Law’ (2020) 20(2) African Human Rights Law Journal 462–483 Abstract: Lesotho’s COVID-19 response was proactive. A state of emergency was declared prior to confirmation of any positive case of the virus in the country. The approach was two-pronged in that, first, a state of emergency was declared under section 23 of the Constitution with effect from 18 March 2020 and, second, a disaster-induced state of emergency was declared in terms of sections 3 and 15 of the 1997 Disaster Management Act with effect from 29 April to 28 October 2020. An ad hoc body aimed at oversight of the response was also established, but was disbanded after four weeks and replaced with another similarly ad hoc body. On the basis of the three core principles of the rule of law, this article interrogates the repercussions of this approach on the principle of the rule of law, in particular, compliance with international human rights obligations contained in ICCPR, the African Charter as well as municipal laws, namely, the Constitution and the Disaster Management Act. It is argued that while Lesotho had to act swiftly in order to protect lives, in so acting the existing legal and institutional frameworks were ignored in violation of the rule of law principle. The article concludes by recommending that in order to avoid similar challenges in the future, the existing legal and institutional frameworks must be strengthened rather than replaced as such duplication of institutions depletes meagre resources and creates a platform for the misuse of public funds and corruption.
Libya
Al-Badou, Dr Hana and Passion University-USA, ‘The Situation of Legal Translation Post COVID-19’ (2023) 3(1) Journal of Languages & Translation 27–39 Abstract: This research focused on the situation of legal translation post COVID-19. A quantitative research design is used with a questionnaire and 50 participants of the Jordanian and Algerian legal translators. The results of the research revealed that legal translation was affected strongly during COVID-19 and that according to the comprehensive ban and there was delay in the issues and legal transactions. But, at post COVID-19, there is a strong demand for legal translation, especially at the first period of stopping the comprehensive ban. Also, most of the legal documents were about immigration transactions to European countries according to the financial situation during and after COVID-19. Also, most of the customers were afraid of COVID-19, and stopped most of their legal operations and transactions until the end of COVID-19, and this directly affected the legal translation. Furthermore, the results revealed that the situation of legal translation became better and more active post COVID-19. As well, the researcher concluded that COVID-19affected negatively on the legal translation and its effects stated to stop post COVID-19. Also, the comprehensive ban caused reduction of the work in the field of translation in general and in the field of legal translation specifically. As well, the active of legal translation backs to the normal situation post COVID-19.
Benkhashem, Abdallah Faraj Abdallah et al, ‘Legal Regulations for a State of Health Emergency in Libyan Law and Its Effectiveness in Limiting the Spread of the Covid-19 Virus’ (2022) 7(4s) BiLD Law Journal 317–329 Abstract: The situation caused by the covid-19 epidemic in numerous countries around the world requires governments to take exceptional measures. In normal circumstances, the state adheres to the application of its ordinary laws, and in exceptional circumstances, it is difficult to apply the same laws to the situation as in the case of the spread of the Corona virus, and a state of emergency is declared. Here, the problem of research arises in the search for the legality of declaring a state of emergency in Libyan legislation and the effectiveness of government decisions in limiting the spread of the Coronavirus. The researcher also aims, through this research, to define the concept of a state of public emergency and a state of emergency in comparative constitutions and the Libyan constitution, and a state of health emergency in Libyan law and the controls for its declaration. Announcing it through analysing the legal texts of the Libyan health law and its success in keeping pace with the epidemic situation in terms of controlling and punishing violators. For the state of emergency in models from different countries and through discussion. Research and analysis of information lead to obtaining a set of results, including the case of the spread of an epidemic, which is considered an emergency, as well as the lack of clarity from a legal and constitutional point of view from the competent authority to declare a state of health emergency in Libya. At the end of the research, we made recommendations that the authorities in Libya may adopt, including the need to intensify the legal and procedural effort to organize emergency states and spread epidemics in the Libyan health law and the upcoming Libyan constitution.
Benkhashem, Abdallah Faraj Abdallah et al, ‘Responsibility State in Islamic Theology and Libyan Law in the Event of an Epidemic Covid-19 Model Overview’ (2023) 7(1) Journal of Positive School Psychology 41–53 Abstract: The purpose of this research was to determine the scope of the state’s obligation according to Islamic jurisprudence and Libyan law in the event that an epidemic, using Covid 19 as an example, is allowed to spread. The fragility of the health authorities in Libya and their failure to absorb the Covid pandemic is the source of the difficulty with the research. This shortcoming is reflective of the fact that the state’s responsibilities in Libya are relatively limited. In Libyan law, there are a number of legal requirements that, if followed, would lead to increased emphasis on the responsibility of the state. The research used an analytical method to investigate Islamic jurisprudence and Libyan law regarding the nature of the state’s duty in the event of the spread of an epidemic (Covid 19). The inductive method was also used in the study to extrapolate the texts of the Holy Qur’an and the Sunnah of the Prophet regarding instances of the spread of the epidemic and the responsibility of the state according to Islamic jurisprudence and Libyan law. This was done in order to draw conclusions about these topics. In addition, a comparative method was used throughout the investigation. in order to make a comparison between the texts of Libyan law and Islamic jurisprudence in relation to the spread of diseases. According to the findings of the study, the concept of the Corona pandemic in Libyan law is compatible with Islamic law. Furthermore, the study revealed that it is the state’s responsibility to control the Corona epidemic in accordance with the principle of equality in duties and costs before society. According to the findings of the research, the legislation in Libya has to be revised in such a manner that it helps contribute to outlining the legal processes and measures that need to be taken for each epidemic individually. This will help restrict the development of similar epidemics in the future.
Malawi
Nkhata, Mwiza Jo and Anganile Willie Mwenifumbo, ‘Livelihoods and Legal Struggles amidst a Pandemic: The Human Rights Implications of the Measures Adopted to Prevent, Contain and Manage COVID-19 in Malawi’ (2020) 20(2) African Human Rights Law Journal 512–539 Abstract: Malawi’s COVID-19 response has evinced a measure of fluidity. This has been manifested by, among other things, the adoption of two sets of subsidiary legislation on COVID-19, the judicial intervention striking down proposed lockdown measures and the constant change in the institutional arrangements meant to spearhead the country’s response. A key challenge that the response has had to contend with is the balance between saving lives and preserving livelihoods. This article analyses Malawi’s response to COVID-19 and establishes that aside from its rather haphazard nature, serious questions of legality have been implicated by the measures adopted. Specifically in relation to lives and livelihoods, the articles focuses on the right to economic activity, to highlight some of the challenges that Malawi’s response generated to the preservation of livelihoods. The human rights implications of some of the measures adopted are also briefly analysed. :
Tengatenga, James, Susan M Tengatenga Duley and Cecil J Tengatenga, ‘Zimitsani Moto: Understanding the Malawi COVID-19 Response’ (2021) 10(2) Laws 20 Abstract: The coronavirus disease 2019 (COVID-19) pandemic has unsettled societies and economies of people and countries all over the world. Malawi is no exception. As such, the COVID-19 pandemic is more than just a health crisis. Countries have responded by instituting lockdowns and other restrictive measures among the populace. These have, in turn, elicited negative responses and legal challenges; most of which are rights-based. The main challenge has been that of the restriction of individual and religious freedoms. It is, thus, no surprise that reactions against government decrees restricting religious gatherings in the wake of the pandemic have been challenged in the courts. We will explore the Malawian traditional religious concept of healing and wholeness, give a chronological outline of government decrees and the responses to the pandemic, and conclude with an analysis using some reflections on Ferdinand Tönnies concepts of Gemeinschaft and Gesellschaft and recollection of traditional religion and critique of the new evangelicalism leading to an understanding of the Malawian response to the pandemic.
Van Hout, Marie Claire, ‘Using COVID-19 to Address Environmental Threats to Health and Leverage for Prison Reform in South Africa, Malawi and Zimbabwe’ (2023) 15(2) Journal of Human Rights Practice 477–505 Abstract: Health rights of prisoners has long been a neglected political issue in Africa, where over one million people are detained, and almost half of whom are in pre-trial detention. African prisons constitute high-risk environments for communicable disease transmission. During the COVID-19 pandemic, the public health literature on African prison responses focused on preparedness as it related to testing capacity, quarantine practices and personal protective measures to mitigate disease spread. This article combines the right to health as narrowly defined by a prisoner’s right to access non-discriminatory equivalent health care, with a broader focus on assessing normative standards of detention. A comparative legal realist assessment of prison operations in South Africa, Malawi and Zimbabwe during COVID-19 state disaster measures is presented, focusing on the environmental determinants of health (ventilation, minimum floor space, water, sanitation, hygiene and nutrition) in prisons. It reveals the inherent tensions in ensuring a balance between respecting the fundamental rights of people living and working in prisons, ensuring adequate environmental health standards and mitigating disease during public health emergencies. Despite insufficient government resourcing and inadequate coverage of COVID-19 responses, few severe outbreaks were reported. This could be due to lack of testing, reporting or other factors (asymptomatic infection, acquired immunity). Prison congestion and unrest however affected prisoners and staff fearful of hazardous living and occupational health conditions. COVID-19 as public health emergency amplifies the need to address systemic deficits in infrastructure, resourcing and efficiency of criminal justice systems. Policy level and pragmatic recommendations for enhanced human rights practice are outlined.
Van Hout, MC et al, ‘A Legal-Realist Assessment of Human Rights, Right to Health and Standards of Healthcare in the Malawian Prison System during COVID-19 State Disaster Measures.’ [2022] International Journal of Prisoner Health (forthcoming) Abstract: Purpose: The first case of COVID-19 in the Malawi prison system was reported in July 2020. Human rights organisations raised concerns about the possibility of significant COVID-19 outbreaks and deaths in the prison system, due to the poor infrastructure, lack of health care and adequate COVID-19 mitigation measures, existing co-morbidities (tuberculosis, HIV, hepatitis C), malnutrition and poor health of many prisoners. Design/methodology/approach: We conducted a legal-realist assessment of the Malawian prison system response to COVID-19 during state disaster measures, with a specific focus on the right to health and standards of health care as mandated in international, African and domestic law. Findings: The Malawi prison system was relatively successful in preventing serious COVID-19 outbreaks in its prisons, despite the lack of resources and the ad hoc reactive approach adopted. Whilst the Malawi national COVID plan was aligned to international and regional protocols, the combination of infrastructural deficits (clinical staff, medical provisions) and poor conditions of detention (congestion, lack of ventilation, hygiene and sanitation) were conducive to poor health and the spread of communicable disease. The state of disaster declared by the Malawi government and visitation restrictions at prisons worsened prison conditions for those working and living there. Originality: In sub-Saharan Africa, there is limited capacity of prisons to adequately respond to COVID-19. This is the first legal-realist assessment of the Malawian prison system approach to tackling COVID-19, and it contributes to a growing evidence of human rights-based investigations into COVID19 responses in African prisons (Ethiopia, South Africa, Zimbabwe).
Mauritius
Beebeejaun, Ambareen and RP Gunputh, ‘A Critical Analysis of the Mauritius Workers’ Rights (Working from Home) Regulations 2020 in the Wake of COVID-19’ (2022) 51(1) Industrial Law Journal 174–193 Abstract: There was no legislation in Mauritius that specifically regulated teleworking services before the arrival of COVID-19, but subsequently the government enacted the Workers’ Rights (Working from Home) Regulations 2020. This note assesses the wide-ranging implications of the Mauritius Regulations and investigates their efficiency and adequacy. In so doing, an International Labour Organization (ILO) Guide to work from home (WFH) produced by the employers’ group and corresponding WFH legislation enacted by Austria and Spain relating to teleworking are also analysed. On this basis, recommendations are offered to enhance the existing legal framework in Mauritius, which may also be helpful elsewhere. :
Mahadew, Roopanand, ‘The Constitutionality of Legal Measures Taken by the Government of Mauritius in the Context of the Covid-19 Pandemic’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 255–281 Abstract: The Covid-19 has had significant impact on Mauritius from a social, political and economic perspective. While the first and elementary actions taken by the government had been measures to contain and control the pandemic, subsequent legal amendments, post Covid-19, eventually followed which have affected socio-economic rights of Mauritians. The right to work has been the most severely affected arguably with the amendments brought to the Worker’s Rights Act 2019. While these amendments generated significant debate by workers, trade unions and political parties, there have been little movements to constitutionally challenge the legal measures taken in the employment sector. The right to health of Mauritians is arguably affected with the imposition of a consent form prior to vaccination which absolves the government of any responsibility for injuries or death caused by the vaccine. The parliamentary and judicial responses to these amendments have been almost non-existent. The reluctance and inaction of citizens in challenging decisions of the government reading vaccination and limitation of rights have also been found as causes of concern. Finally, the existing constitutional framework on derogation of rights in times of public emergency has also been found to be in dissonance with the Siracusa Principles.
Roudik, Peter et al, ‘Freedom of Expression during COVID-19’ (Law Library of Congress Legal Report, September 2020) Abstract: This report, prepared by the research staff of the Law Library of Congress, surveys legal acts regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. The report focuses on recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan.
Morocco
Tamburini, Francesco, ‘The COVID-19 Outbreak in North Africa: A Legal Analysis’ [2021] Journal of Asian and African Studies (advance article, published 13 January 2021) Abstract: North African nations, especially Egypt, Algeria, and Morocco, have been heavily affected by COVID-19 if compared to other African countries. Governments in North Africa took proactive legal measures to manage the virus threat, safeguarding population health, but also triggering repressive and invasive mechanisms that in some cases jeopardized basic freedoms and rights. This work will analyze comparatively the anti-COVID-19 legislations, pointing out how the legislative measures mirrored the level of transition of democracy, the opacity of some regimes, exploitation of the pandemic to foster repressive control, and highlighting the weakness of new democratic institutions unprepared to balance health security and democracy.
Mozambique
Marreiros Moreira, Tiago and Daniel Guilherme, ‘Natural Wealth’ [2020] (Summer) International Financial Law Review 73–75 Abstract: Reports on Mozambique’s response to the coronavirus emergency and its economic policy aimed at encouraging foreign investment in natural gas production.
McKay, Annelize, Chazanne Grobler and Martha M Bradley, ‘COVID-19 and Its Implications for the Law of Non-International Armed Conflict: The Case of Mozambique’ in Marko Svicevic and Martha M Bradley (eds), Mozambique’s Cabo Delgado Conflict: International Humanitarian Law and Regional Security (Routledge, 2024)
Rapuleng, Thabang, ‘Days of Our Lives in the “New Normal”: Retrenchments in Southern Africa Post COVID-19’ (2020) 20(6) Without Prejudice 56–57 Abstract: The global COVID-19 pandenmic has brought about unprecedented changes to the employment landscape and thrust us into a ‘new normal’. In looking beyond COVID-19, this article seeks to give a cursory overview of what constitutes an employment relationship, to determine whether an employment contract may be terminated on the basis of operational requirements and, lastly, to examine whether employees who have been retrenched on the basis of operational requirements are entitled to severance packages in Botswana, Lesotho, Mozambique and Namibia.
Namibia
Rapuleng, Thabang, ‘Days of Our Lives in the “New Normal”: Retrenchments in Southern Africa Post COVID-19’ (2020) 20(6) Without Prejudice 56–57 Abstract: The global COVID-19 pandemic has brought about unprecedented changes to the employment landscape and thrust us into a ‘new normal’. In looking beyond COVID-19, this article seeks to give a cursory overview of what constitutes an employment relationship, to determine whether an employment contract may be terminated on the basis of operational requirements and, lastly, to examine whether employees who have been retrenched on the basis of operational requirements are entitled to severance packages in Botswana, Lesotho, Mozambique and Namibia.
Shafuda, Christopher Pomwene, ‘A Bumpy and Gloomy Road Ahead: An Analysis of Covid-19 Response in Namibia’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 341–372 Abstract: The COVID-19 pandemic in Namibia started with a hastily arranged press conference on 14 March 2020, when two tourists tested positive for the virus a day before. Authorities have used ad-hoc policy measures during the pandemic, such as lockdowns and mass quarantines, to slow the virus transmission. However, the effect of these measures on the economy is not favourable. In this chapter, I dissect the impact of these COVID-19 purposes on the Namibian economy. The COVID-19 pandemic and the measures to curb it threatened the already trailing government efforts to end poverty, inequality and unemployment, which already persist in the country. Hence, the pandemic put relentless pressure on government expenditure, making the road to economic recovery long and bumpy.
Zongwe, Dunia P, ‘Steeling for the Next Pandemic Through Fiscal Responsibility: The Bank of Namibia as Fiscal Council’ in Daniel D Bradlow and Magalie L Masamba (eds), COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) 268-302 *[OPEN ACCESS BOOK]* Introduction: This chapter seeks to resolve this trade-off between emergency liquidity and long-term solvency by exploring the possibility of enacting fiscal responsibility laws. To help policy makers juggle between these two diametrically-opposed poles, I have divided the substance of this chapter in five parts. The first part looks at the COVID-19 pandemic that forms the context of this chapter, focusing on its effects on Namibia’s fiscus. The second part presents the core dilemma that has ensnared developing countries, namely, the uneasy balancing act that consists in defusing the present liquidity crises while ensuring long-term growth and development.
Nigeria
Aborisade, Richard Abayomi and Oladele Adelere Adeleke, ‘Pandemic Policing and Community Engagement: Preparedness, Legitimacy and Public Support During the COVID-19 Crisis in Nigeria’ (2024) 49(3) Criminal Justice Review 375–394 Abstract: This study brings to the fore, insights into three key factors that had been widely noted to play significant roles in driving effective pandemic policing. These are the preparedness of the police as first responders to a public health crisis, the level of public trust in the police as a legitimate power holder, and community engagement as a tool to drive public support and participation in fighting COVID-19. Using the Nigeria police as a case study, with the damning reports of abuse of power and other misconduct, this study examined how the police responded to COVID-19 mandates and community participation. Interviews with 40 police officers who enforced the COVID-19 lockdown, 16 senior police officers, and 18 community leaders within Lagos and Ogun states were conducted, and a thematic analysis of the narratives was carried out. Findings indicated that community engagement was not effectively deployed by the Nigerian police in the course of pandemic policing. This was due to a lack of police preparedness, over-reliance on the use of force for public control, public distrust in the police, and a lack of prior practice of community engagement by the police. Public distrust in the police was found to be central to peoples’ disobedience to COVID-19 rules which worsened police-community relations, culminating in protests against the police and its formations. These findings have important policy and practical implications if police legitimacy and post-COVID police-community relations are to improve.
Aborisade, Richard A and Oluwajuwon G Ariyo, ‘Policing the Coronavirus Pandemic: Nigeria Police Senior Officers’ Views on Preparedness, Response, Legitimacy and Post-COVID Policing’ (2022) 24(1) International Journal of Police Science & Management 77–88 Abstract: In the wake of pandemic policing occasioned by COVID-19, Nigeria police have been facing challenges of a lack of legitimacy, together with what is termed the militarization of police operations. This has impacted considerably on police–community relations. Meanwhile, early reports on the police response to the pandemic indicated high levels of lockdown violation, despite adoption of a militarized option in the enforcement of restriction orders. In reviewing one of the first police interventions on a public health crisis in Nigeria, a qualitative study was conducted among top-ranking police officers who supervised the enforcement of lockdown and other COVID-19 measures. Sixteen interviews were conducted and a thematic analysis of the narratives was carried out. Police unpreparedness for public health interventions, and public resistance to the use of repressive, force-led styles of policing were identified as major impediments to positive pandemic policing. Therefore, police officers are advised to ensure the application of procedurally just practices in their interactions with the public.
Abdulai, Emmanuel Saffa, ‘Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 3–18 Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone. :
Abdulraheem, Nimah Modupe and Fatimah Funsho Abdulrasaq, ‘Impact of COVID-19 Lockdown on Informal Sector Women’s Right in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 172–189 Abstract: The strategy of total lockdown adopted as a consequential social policy to flatten the curve of covID-19 spread is associated with certain degrees of impact on various participants in the economic sector of the Nigerian economy. However, women participants in the sector appear the worst-hit due to their role in some areas as breadwinners of their families (nuclear and extended), or disruption to their economic activities as petty traders or suppliers of food products. The impact on women in the informal sector is due to a number of factors such as pettiness of their stock, lack of substantial trading capital and savings, trading for subsistence based on daily earnings, distance between dwelling places and market locations as well as the effect of stoppage of vehicular movement on the need for stock refill. These conditions render the lockdown a wanton violation of the rights of the affected women to welfare, and right to suitable and adequate food. Thus, while the goal of the lockdown arrangements is well acknowledged, it is the argument of this paper that same could be achieved without derogating from the Constitutional-vested rights of this vulnerable group. With the aid of news media, the paper employs doctrinal method and occasional resort to qualitative evidence through interviews to investigate the extent of suffering by women traders on account of the covID-19 lockdown in Nigeria and its effects on their economic rights as entrenched under the Constitution of the Federal Republic of Nigeria. In addition, it explores policy or legislative frameworks that could be explored to ameliorate the challenge and makes relevant recommendation.
Abugu, Uwakwe, Chukwudi Henry Okeke and Chidinma Therese Odaghara, ‘Legal Imperative for Patients’ Safety under COVID-19 Care and Treatment Protocol in Nigeria’ (2021) 3(1) International Journal of Comparative Law And Legal Philosophy 117–124 Abstract: The principle of patients’ safety is fundamental to any modern health care system in the world today. It seeks to ensure that patients get adequate attention and prevention of any adverse physical, social, emotional or psychological events due to medical errors or inadequate medical facilities or improper environment while undergoing treatment in a health facility. In Nigeria this principle is more adhered to in breach than in observance in healthcare delivery and, particularly, in the care and treatment protocols of the COVID-19 patients. In this paper, attempt is made to espouse the general principle of patients’ safety and to set out the law, the exceptions and the various aspects of violation of the principles of patients’ safety in the care and treatment of Covid-19 patients in Nigeria. A case is finally made for the establishment of a legal framework for patients’ safety in Nigeria to enhance the application of the principle in Nigerian healthcare delivery system and particularly in the treatment and care of the Covid-19 patients. :
Abulude, Francis Olawale and Ifeoluwa Ayodeji Abulude, ‘Impact of the COVID-19 Pandemic: Lesson from Nigeria’ (SSRN Scholarly Paper No ID 3629598, Social Science Research Network, 17 June 2020) Abstract: COVID-19 is the deadly virus that has nearly locked down the entire universe. It has claimed several millions of lives worldwide. Presently, there is no known cure for the virus. Africa is one of the continents affected and Nigeria is one of the countries affected. The aim of the review is to report the lessons learn through out the pandemic period. To achieve the aim, journals, internet papers, and news reports were used for the write-up. The pandemic have influences on education, economy, religious, sporting, social, banking activities, and others. The federal, state governments, military, NGO, individuals, and religious bodies provided and donated palliatives to cushion the effects of the pandemic on the populace. To curb the spread of the disease, measures were put in place for the people to adhere strictly with. There were violators and adequate penalty were meted by constituted mobile courts on them. The locked down is relaxed a little bit to watch how effective is the efforts of the government to stop or reduce the pandemic. :
Adegbite, Aderonke and Olubunmi Adeleke, ‘International Labour Organization and Employment Stability during the COVID-19 Pandemic: The Nigerian Situational Analysis’ (SSRN Scholarly Paper No 4347618, 4 February 2023) Abstract: Retention of employment is an antidote for the containment of social fallout in an economy. Every employee would strive to retain their jobs at all costs and would be ready to put in extra efforts if there is the certainty of schemes in place to ensure job security. The emergence of Covid -19 Pandemic in the world in the year 2019 has brought about an unprecedented change in the global economy which expectedly affects employees who are the main contributors to the economy. The impact of Covid -19 and more, has gingered the International Labour Organization (ILO) to come up with some frameworks, policies and conventions which has the main aim of ensuring job security even in the face of Covid -19 and any other Pandemic in the foreseeable future. This work aims at examining the legal frameworks of ILO as regards the mitigation of the impact of Covid -19 on employees and to analyse provisions of ILO laws with regards to the protection of employee status with an expose to the level of ratification of ILO provisions in Nigeria.
Adegbite, Olusola B, ‘Reaching the Furthest Behind: COVID-19 Measures in Nigeria and the Rights of Persons with Disabilities under Domestic and International Law’ (2024) 32(2) Michigan State International Law Review 201–252 Abstract: In response to the COVID-19 pandemic, governments across the world introduced containment measures aimed at limiting the spread of the virus and mitigating the overall impact of the pandemic. Some of the non- pharmaceutical measures introduced included country-wide lockdowns, bans on public gatherings, mandatory wearing of face masks, handwashing, and social distancing. While these measures contained the virus in most countries, they also constrained the human rights and fundamental freedoms of citizens. These measures disproportionately impacted persons belonging to vulnerable groups, such as Persons with Disabilities (PWDs). Much of this is traceable to the fact that, in the rollout of these measures, the obligations of governments regarding this class of citizens were ignored while their unique condition was not taken into consideration. This article sets out the distinctive harm caused to PWDs by reason of COVID-19 measures in Nigeria and how the government’s actions impeded the rights of this segment of society during the pandemic. Adopting a doctrinal approach, the article examines the legal framework governing the rights of PWDs under domestic and international law, highlighting specific violations against this group generated by containment measures. The article also engages the attitudinal and socio- cultural environment prevalent in Nigeria that discriminates against PWDs and how this played a significant role in exacerbating violations of their rights during the pandemic. The article recommends that the Nigerian State comply with its obligations under international law by prioritizing the development of infrastructure necessary for the everyday life of PWDs and also go further to hold both public and private actors to the same obligation as provided under domestic law. Ultimately, this will significantly transform the status of this class of citizens and improve their overall well-being.
Adegoke, Taiye, ‘Banks and Other Financial Institutions Act (Amendment) Bill 2020 (A Comprehensive Analysis of the BOFIA 2020)’ (SSRN Scholarly Paper No ID 3670773, Social Science Research Network, 7 August 2020) Abstract: In July 2020, the Senate of the Federal Republic of Nigeria for the first time since 29 years passed a Bill to repeal the Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 and re-enact the Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 (Amendment) Bill, 2020. The Bill seeks to regulate banking and businesses of other financial institutions by prohibiting the carrying on of such businesses in Nigeria except under licence and by a company incorporated in Nigeria. This article examines section by section, the innovative provisions of the Bill and how they clearly improved on the old Act to meet the nuances of the current business world. It is hopeful that just as the new CAMA received the assent of the President of the Federal Republic of Nigeria, the new BOFIA scales through the House of Representatives and eventually gets the President’s assent as the new Act is poised to strengthen the legal framework for the regulation of banks and bring it in line with global best practices, and prevent distress especially during and after this turbulent period of COVID-19, so that the country can adequately prepare and deal with potential post COVID-19 challenges in the banking sector. :
Adegoke, Taiye, ‘COVID-19: Possible Defences to a Non-Performing Party in a Commercial Contract’ (SSRN Scholarly Paper No ID 3588069, 26 March 2020) Abstract: It is no longer news that the world is confronted with a common enemy today – the novel Coronavirus 2019 popularly known as COVID-19. The virus was first discovered in China and has today spread across over 190 countries around the globe. COVID-19 has disrupted the world economy and businesses across the globe are heavily hit by the operation of the pandemic. There is no gainsaying the fact that this novel coronavirus has surfaced in Nigeria with over 40 cases discovered so far as at the time of this article and still counting. The Nigerian Government, like other countries of the world have taken some measures to contain the spread of this virus in the most populous nation in Africa, which measures obviously is taking a hard toll on businesses, transactions and the economy at large. While the world continuously strives hard to put an end to this misery ravaging the whole world, it is almost certain that the post COVID-19 world would likely herald a bundle of commercial disputes possibly arising from breach of obligations as a result of the sudden outbreak of this disease. Thus, commercial lawyers would be called upon to review various commercial agreements and defaulting litigants would rely on commercial lawyers, to present a solid defence for them, to the breach of their obligations resulting from the COVID-19 disorder. :
Adegoroye, Adebimpe, ‘Topic: Force Majeure: The Impacts Of The Covid 19 Pandemic On Nigerian Contracts’ (SSRN Scholarly Paper No 4986784, Social Science Research Network, 9 August 2024) Abstract: The general principle of law is that parties are bound by their obligations in a contract. However, there are certain legally recognized situations that can make a party or parties to not fulfil their obligations, of which discharge by frustration is a part of them. Discharge by frustration occurs when parties are discharged of their obligations in a contract, as a result of the fact that an event(s) occurred which the parties didn’t plan for during the formation of a contract which then makes it difficult to enforce such contract. This events led to the establishment of the doctrine of ‘Force Majeure’. Force Majeure is a French term meaning ‘superior force’. In the Legal sense, force majeure is a clause put in contracts to remove liability for unforeseeable and unavoidable events that prevent participants from fulfilling obligations. Force Majeure has largely been used in contracts, however before the advent of the corona virus, force majeure in contracts weren’t widely used except in oil and gas industries because of natural disasters. However the pandemic has made lots of impacts on Nigerian contracts as well as the Nigerian Legal system at large, as it has led to the wide use of Force Majeure into contracts. This is why this paper seeks to look into the impact of COVID on Nigerian contracts with a major focus on incorporation of Force Majeure into contracts and its legal developments.
Adeoye, Feranmi, ‘COVID-19: Impact on the Administration of Criminal Justice in Nigeria’ (SSRN Scholarly Paper No ID 3757851, 15 May 2020) Abstract: While Nigeria refuses to halt the wrestle against the pandemic to prevent an uncontrollable outbreak, almost every facets of human life outside the home has been on a standstill. On the 30th day of March 2020, the Nigerian President announced the lockdown of major cities including Lagos, Ogun and Abuja while many other states are also on lockdown in compliance with various laws and regulations made by the appropriate bodies. On the 13th day of April, the President extended the lock down by two weeks since the number of positive cases have reached 343 persons across the country. There is no gainsaying that the pandemic has meted out its impact on the administration of criminal justice in various nations of the world. This article examines the impact of COVID-19 on the administration of criminal justice in Nigeria. :
Adetunji, Abdulrahman, ‘Halting The Upsurge Of Future Pandemics: The Role Of Nigerian Government’ (SSRN Scholarly Paper No ID 3679190, Social Science Research Network, 22 August 2020) Abstract: Humanity has faced countless threats throughout its existence. Epidemics, pandemics, natural disasters, wars, etc. All these threats have two features in common – None was truly global in its direct impacts, and despite the devastating effects these threats had, humanity always survived and thrived afterwards. Today, COVID-19 has changed the narrative. This paper examines the factors that led to the quick spread of the virus and proffer ways through which the government can prevent such occurrences in the future. :
Adewopo, Adebambo, ‘Access to Pharmaceutical Patents in the COVID-19 Emergency: A Case for Government Use in Nigeria’ (2021) 65(S2) Journal of African Law 259–286 Abstract: The COVID-19 pandemic has continued to exert enormous pressure on public health policies and systems, with far-reaching implications. The race for vaccines has raised important intellectual property rights issues. These are evident in the need to advance the public interest and in the obligation of governments to address the challenge of access to vaccines, especially in sub-Saharan countries like Nigeria with relatively underdeveloped healthcare and innovation ecosystems. While the Nigerian Patents and Designs Act (PDA) establishes a compulsory licence regime that affords access to patented drugs, existing public healthcare is severely challenged in providing access to new medicines. This article examines the framework for patent protection of pharmaceuticals designed to meet public health challenges, such as those presented by the pandemic. It recommends the implementation of a government use provision under the PDA, with a view to addressing the challenge of access to COVID-19 vaccines. :
Adewumi, Afolasade A, ‘Jurisprudential Basis of the Attitude of Traditional Healers in South-West Nigeria on COVID-19 Infection in Ibadan, Oyo State, Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 127–136 Abstract: Health is seen as the most basic asset every human being has. The health of an individual and that of his family members and close associates has always been a source of concern to individuals over the years, making well-being to be synonymous with health. The COVID-19 infection outbreak has affected the whole world and the medical profession is yet to understand it fully. All over the world, attempts have been made and are still being made to provide a cure for the infection. Inasmuch as medical practitioners are pulling their weight in responding to the pandemic, traditional medicine ought not to be ignored since traditional healers’ concept of disease is wider than that of medical practitioners. Moreover, traditional healers are believed by their communities to represent the symbol of their health and prosperity. This case study carried out in Ibadan, the largest city in West Africa, brings to fore the jurisprudential angle to the attitude of the traditional healers to the COVID-19 infection and states how they can assist in enforcing the safety precautions to prevent community spread of the virus.
Adewumi, Afolasade A and Oluyomi Susan Pitan, ‘Nigerian Law Students’ Perception of Online Teaching: Appraisal of COVID-19-Imposed Online Classes’ [2021] Asian Journal of Legal Education (advance article, published online 4 December 2021) Abstract: The Council of Legal Education, which is the regulatory body for the legal profession in Nigeria, has made it clear over the years that the training of lawyers cannot be adequately carried out through correspondence or distance learning, which can be interpreted as online learning or remote learning. As a response to the COVID-19 pandemic lockdown, various online teaching and learning methods were adopted by educational institutions all over the world, to ensure the continuity of the learning process, truncated by the pandemic. This study, carried out through a multidisciplinary approach, is an assessment of the perception of students on the level of effectiveness of COVID-19-imposed online teaching and learning, especially, in comparison with the traditional classroom setting among legal education students in Nigeria. From the study, it was observed that students perceived the online learning method to be more effective than the traditional face-to-face method of delivery but were less focused during the online classes as compared to physical classes. Furthermore, many of the students opined that online classes should be discontinued after the lockdown. Despite students’ distractions during online learning, there is a need to recognize that online learning is a panacea for the crisis at hand (the COVID-19 pandemic), and for as long as it lasts, there may not be a complete return to the physical classroom setting. The study suggests ways of minimizing the challenges that students who do not find online learning effective face with its use, while also calling on the Council of Legal Education to revisit its stance towards the adoption of online learning as a suitable teaching method to be incorporated into legal education. :
Aidonojie, Paul Atagamen and Odojor Oyenmwosa Anne, ‘Impact and Relevance of Modern Technological Legal Educational Facilities amidst the Covid-19 Pandemic: A Case Study of Law Students of Edo University Iyamho’ (2021) 5(4) KIU Journal of Humanities 7–19 Abstract: The study investigates the impact and relevance of modern technological educational facilities/resources amidst the Covid-19 pandemic, using Edo University Iyamho undergraduate law students as a case study. We administered 65 online structured questionnaires to law students of Edo University Iyamho. We used a descriptive and analytical method for analyzing data generated from the questionnaire. The study found that Edo University Iyamho is well equipped with ICT educational facilities/resources in the training of law undergraduate students, and it has been very viable in conducting e-learning/research amidst the Covid-19 pandemic. The study also found that poor network and epileptic power supply are some significant challenges often encountered in utilising modern technological educational facilities/resources. Given this, it was concluded and recommended that Nigeria Government should invest more on electricity to ensure steady power supply, and internet network providers should ensure effective and efficient network. :
Aidonojie, Paul Atagamen et al, ‘Legal Issues Concerning Compulsory COVID-19 Vaccination: Nigeria as a Case Study’ (2024) 3(2) Golden Ratio of Law and Social Policy Review 74–83 Abstract: It is no news that COVID-19 has rendered severe havoc in the global environment. Although, various medical scientists and scholars were able to find a possible curtailment (Through vaccination) of the deadly COVID-19, however, there seems to be fear of the negative medical outcome of being vaccinated with the COVID-19 vaccine, given several claims of the potential danger. Furthermore, it suffices to state that Nigeria has also had its fair share of the COVID-19 pandemic. In this regard, to curtail the spread of COVID-19 in Nigeria, the Nigerian government sorts to make vaccination compulsory, despite the legal and medical rights of its citizens as enshrined in the constitution and judicial precedent. It is in this regard, that this study sort to adopt a hybrid method of study concerning the legal issues of compulsory vaccination in Nigeria. Concerning this, 310 questionnaires were sent to respondents residing in Nigeria. The study therefore found that there were incidences of COVID-19 in Nigeria and there are laws concerning the control of infectious disease in Nigeria. However, the study further found that it is a legal misnomer to compel an individual forcefully against his/her wishes to be vaccinated. Therefore, the study concludes and recommends that for effective vaccination against COVID-19, the Nigerian government needs to avoid forceful vaccination, but rather a wide sensitization concerning the vaccine’s potency as against the negative claim concerning the COVID-19 vaccine.
Ajayi, Mary-Ann O and Mathias Ikokoh, ‘Addressing the Epidemic of Rape and Sexual Violence against Women and Children during the COVID-19 Lockdown in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 103–126 Abstract: Since the outbreak of Covid-19 pandemic, there has been drastic increment of cases of rape in Nigeria which has resulted in public outcry and condemnation. The worrisome trend in the reported cases, is the murder of most victims especially females. The effects of rape, are multifaceted and its affects both the victim and the society at large. It renders the victim emotionally and psychologically traumatized. This paper adopts the doctrinal methodology examining the quagmire of increment of rape cases in Nigeria in the wake of Covid-19 pandemic by highlighting the consequences of rape, the legal framework on rape in Nigeria. It also discusses various forms of sexual violence and the challenges in investigating and prosecuting rape cases in Nigeria. The paper examines the criminal justice system and the adjudication of rape cases in Nigeria. The paper found that the legal framework on rape is inadequate as at present, with the exception of the Federal Capital Territory, Abuja, is inadequate and obsolete. The attitude of investigating personnel especially the police, is an albatross to the successful investigation and prosecution of rape cases in Nigeria. The paper therefore makes vital recommendations on how to curb the rape epidemic in Nigeria post covid-19.
Akanji, Olajide O, Lohna Bonkat-Jonathan and Christopher O Ngara, ‘Legislating in Hard Times: Covid-19 and the Federal Legislature in Nigeria’ (2022) 2(2) International Journal of Parliamentary Studies 217–239 Abstract: This article interrogates the issue of the role of the legislature in social emergencies such as the covid-19 pandemic by examining the impact of the covid-19 pandemic on the legislature and the response of the legislature, using the Nigerian federal legislative institution (the National Assembly) as a case study. The aim is to distil some of the key legislative issues that have emerged since the spread of the virus to Nigeria, the challenges the legislature has faced, which have shaped its efforts to respond to the covid-19 problem, and the efforts of the legislature to address the problem. The article notes that Nigeria’s federal legislature, and indeed all legislatures, have to innovate with new ideas, technology and procedural flexibility in the performance of their traditional functions in order to ensure political accountability and remain relevant in times of emergency.
Akinduyite, Olorunfemi, ‘Nigerian Content and the Lessons from Covid-19 Pandemic’ (SSRN Scholarly Paper No 4992327, Social Science Research Network, 30 August 2023) Abstract: This essay examines the impact of the COVID-19 Pandemic on Nigeria’s oil and gas industry. It answers the question: was local capability able to weather the storm of the pandemic? In this essay you would find that the NCDMB has been able to drive tremendous growth in Nigeria’s local content. However, the Pandemic revealed weaknesses that national capability were unable to overcome. Therefore, this essay makes policy recommendations towards a more improved local content, so that in-country capability would be more resilient to unforeseen horrors.
Animashaun, Oyesola and Howard Chitimira, ‘A Legal Analysis of the Protection of the Rights of Persons with Disabilities During the COVID-19 Pandemic in Nigeria’ (2022) 15(1) African Journal of Legal Studies 91–114 Abstract: Abstract Persons with disabilities are often discriminated against in society on the basis and/or grounds such as race, ethnicity, cultural beliefs, as well as religious beliefs. Moreover, there is a general negative societal attitude and a negative perception against persons with disabilities globally. For instance, persons with disabilities are negatively treated as a charitable problem of the society in many countries, including Nigeria. This approach could have deliberately or inadvertently led to the omission of the specific rights of persons with disabilities from the list of fundamental rights under the Nigerian Constitution, 1999. However, the recent enactment of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018, could be a positive step in addressing numerous challenges such as poverty, unemployment, discrimination, and health care problems that are faced by persons with disabilities in Nigeria, especially in the wake of the novel coronavirus (COVID-19) pandemic. Against this background, the article discusses the challenges that are encountered by persons with disabilities in Nigeria during the COVID-19 pandemic. This is undertaken to, inter alia, assess the adequacy of the legal and constitutional protection on the rights of persons with disabilities, especially during the ongoing COVID-19 pandemic in Nigeria. Moreover, the flaws and gaps in the current legal and constitutional regime for the protection of the rights of persons with disabilities in Nigeria are discussed. Thereafter, possible recommendations to curb such flaws in Nigeria are provided.
Aoyagi, Chie, ‘Effects of COVID-19 on Regional and Gender Equality in Sub-Saharan Africa: Evidence from Nigeria and Ethiopia’ (IMF Working Paper No 2021/169, 1 June 2021) Abstract: The labor structure in sub-Saharan Africa is characterized by a high share of informal employment in the rural agricultural sector. The impact of COVID-19 on female employment may not appear to be large as the share of such employment is particularly high among women. Nevertheless, widespread income reduction was observed both in rural and urban households. This could worsen the opportunities for women as husbands’ control over the household resource is the norm. The paper also finds that rural children struggled to continue learning during school closures. Gender-sensitive policies are needed to narrow the gap during and post-pandemic.
Bello, Lateefat Adeola, ‘Overview of Legal Issues in the Protecton of Indigenous Herbs for the Treatment of Covid -19 and Other Ailments’ (2022) 28(1) Proceedings of the Academic Conference of Sub-Sahara African Academic Research Publications on Knowledge and New Discoveries in the Sustainable Development: Inter-disciplinary Approach 1-9 Abstract: Medicine is as old as man; the consensus is that nature has a cure for every ailment. In time past life-threatening diseases that defied orthodox medicine were successfully treated in many parts of the world with traditional herbs some of which have now been converted to drugs and supplements used by patients. Nature in itself is replete in the environment around us. Nigeria is richly blessed with abundance of herbs. The infusion from some of these herbs, have been traditionally and successfully used in the treatments of ailments that have defied orthodox medical treatment. While the Covid -19 pandemic engulfs the world creating confusion in treatment and applicable remedies in its wake, many countries have attempted the application of alternative medicine for the management of this widespread disease. The use of indigenous herbs in this instance should ordinarily be a welcome development, but the possible use of herbs in the instance case has been trailed with lots of bad publicity that created fear even amongst Nigerians many of whom may have in the past used these remedies for one ailment or another. This has raised multitude of questions on the effectiveness and reliability of herbs, what impedes the use(s) of herbs ? Are there requisite legal and institutional framework to address the possible use of herbs for the treatment of Covid -19 and other related illnesses? and what are the measures that must be put in place to protect this age long indigenous method for treatment of illnesses as a stop gap treatment in future occurrences. To address these questions, this paper adopts a doctrinal approach in its analysis of existing position on herbal cure, gave overview of attempts to protect the indigenous knowledge of herbs and concludes with recommendations on providing an enabling legal environment to encourage, research and use of herbs as alternative to orthodox medicine as immediate and preparatory strategies in the fight against pandemics where orthodox treatment may fail to yield the desired results.
Briggs, Elijah C and Francis Ibekwe-Allagoa, ‘Frustration of Leasehold Contracts in Nigeria: A Case Review on the Tenets Espoused in Araka v. Monier Construction Company - Lessons in the Pandemic Era’ (SSRN Scholarly Paper ID 4050837, 6 March 2022) Abstract: The manifest twist and turns that emerge from the negotiation, conclusion and enforcement of contracts seldom come up when everything goes as contemplated and agreed by the parties. These readily foreseeable outcomes are easily accommodated as they were largely anticipated. The cookie begins to crumble when for certain uncontemplated and unforeseeable circumstances both parties find themselves unable to perform their respective obligations due under the contract – and then each rummages through the contract and tries to latch on any term to advance their claims for a breach of the contract with attendant remedies. The Supreme Court in Araka v. Monier Construction Company over three decades ago saw the need to enforce and expound the doctrine of frustration of contracts, being an offshoot of the legal consequences posed by the Biafra Civil War, after a long drawn legal sojourn from the High Court to the apex Court. This paper seeks to critically review the doctrines espoused in the locus classicus case and reflect upon them in the COVID-19 legal regime, where contracts, then and now, are fraught with the same matrix of facts and circumstances and proffers solutions on how the courts would eventually adjudicate upon same.
Bristol-Alagbariya, Edward T, ‘The COVID-19 Pandemic Era: Flashlight on the Challenges and Opportunities of Environmental Democracy in Nigeria’s EIA Process’ (2021) 9(1) Global Journal of Politics and Law Research 23–38 Abstract: The global benchmarked stipulation for environmental democracy is expressed in Principle 10 of the Rio Declaration on Environment and Development, 1992. UN systems, international-intergovernmental organisations, regions, countries and private sector organisations as well as other sectors and units of the world’s political economy are designing and evaluating their environmental democracy frameworks to achieve this global benchmarked stipulation. Hence, the UN Economic Commission for Europe’s Aarhus Convention, 1998, features as an elaborate expression of environmental democracy around the world. While developing countries are yet unable to efficiently implement environmental democracy in the course of Environmental Assessment in their respective jurisdictions, especially in resource-rich developing countries like Nigeria, the COVID-19 pandemic erupted and is ravaging humanity and disrupting the economic wellbeing of countries. Thus, this paper examines the challenges and opportunities associated with environmental democracy in the course of Environmental Impact Assessment process and practice in Nigeria. :
Chuma-Okoro, Helen and Ifeoma Ann Oluwasemilore, ‘Intellectual Property Rights, Agricultural Biotechnology and Food Sufficiency: Strengthening the Nigerian Intellectual Property Legal Framework for Food Self-Sufficiency in the Aftermath of a Global Pandemic’ (2022) 36(1) International Review of Law, Computers & Technology 48–67 Abstract: This article focuses on the imperatives of self-sufficiency in food production in Nigeria from the experience of the COVID 19 pandemic, and examines the role of intellectual property rights (IPRS) in boosting productive capacity. While the different types of IPR protection standards remain relevant to the overall goal of food self-sufficiency in respect of the different activities and outputs along the food value chain, the main emphasis of the article is on patent and plant varieties protection (PVP) in connection with agricultural biotechnology. The article is library-based and explains the meaning and import of food self-sufficiency, the factors responsible for the weak capacity for food self-sufficiency in Nigeria in particular, and other African countries vis-à-vis potentially enabling factors. It also examines the strength and weaknesses of the current IP laws in Nigeria, and how Nigeria could repurpose or improve her laws to achieve the objective of food self-sufficiency. The article found that IPRs are relevant in boosting greater efficiency and productivity of Nigerian agriculture to strengthen food self-sufficiency, but the current IPR framework are not designed to circumvent the perils and leverage the benefits of IPRs that would help unlock the potential of the sector for food self-sufficiency.
Eboibi, Felix E, ‘Cybercriminals and Coronavirus Cybercrimes in Nigeria, the United States of America and the United Kingdom: Cyber Hygiene and Preventive Enforcement Measures’ (2021) 47(1) Commonwealth Law Bulletin 113–142 Abstract: There seems to be no lockdown for cybercriminals who are capitalizing on the global lockdown to perpetrate cyber coronavirus crimes. Qualitatively, this paper examines these crimes, their peculiarities, and how they can be curtailed. Although the United States of America (US) and the United Kingdom (UK) have put in place cyber hygiene and preventive enforcement measures to curtail the activities of cybercriminals in cyberspace, the same cannot be said of Nigeria. Arguably, cybercrime institutions in Nigeria lack adequate capacity building, professional competence, and inter-agency cooperation concerning cyber coronavirus crimes. Consequently, it calls for the adaptation of the US and UK measures to protect cybercitizens. :
Eboibi, Felix E and Ebi Robert, ‘Global Legal Response to Coronavirus (COVID-19) and Its Impact: Perspectives from Nigeria, the United States of America and the United Kingdom’ (2021) 47(4) Commonwealth Law Bulletin 593–624 Abstract: Global COVID-19 legislation contains the spread of the disease. However, the Nigerian government’s response to the spread of the virus suffers some technical flaws. Consequently, this paper asks how Nigeria’s response to the pandemic compares with those of the United States of America (US) and the United Kingdom (UK). Qualitatively, it seeks to substantiate the proposition that Nigeria’s response relies too heavily on executive directives and extra-judicial controls, leading to human rights abuses. Even worse is the absence of specific provisions in the Nigerian legislation detailing the application of remote hearing to facilitate redress arising from these infractions comparable to what is obtainable in the US and UK. The paper highlights the several loopholes demonstrated by Nigeria’s legal response to the COVID-19 pandemic, its impact, and the lessons the Nigerian government can adapt based on the US and UK experiences. :
Edet Jr, Bassey, ‘Review of the Nigerian Tax Policy’s Impact on the Finance Act 2019’ (SSRN Scholarly Paper No ID 3614532, 30 May 2020) Abstract: Every government is desirous of expanding its tax net, increasing revenue and creating a business ambience that will enhance business growth and enthrall investors. The question of how government policies should be structured to tackle excessive expenses, source for funds to meet these needs and properly manage resources are problems governments always attempt to remedy. For a long time, companies in Nigeria groaned about the underlying issues that troubled the tax system which in turn affected the ease of doing business. The tax laws seemed divorced from the societal changes that were occurring and the government in reaction, started by reviewing its Tax policy and subsequently amended its Tax Laws. This paper assesses how the Nigerian Tax Policy of 2017 has influenced and impacted certain aspects of the Finance Act of 2019, especially in the light of the COVID-19 pandemic. It also addresses issues bordering on the legal status of the policy, multiple taxation and enforcement of the policy. Finally, it canvases arguments for the policy to be rooted in the Constitution; however this is insuperable without the amendment of the Constitution. If done, it’s imagined that it will address the issue of the taxing powers including provisions for enforcement and deliberate internalization of taxation principles for the regulation of a healthy economy and achieving an effective tax administration. The author however applauds the reforms certain to impact Nigeria’s digital economic climate. :
Ekpoudo, Anthony et al, ‘COVID-19 Pandemic and Environmental Protection: Imperatives for Environmental Law and Management in Nigeria’ (2024) 8(5) Edelweiss Applied Science and Technology 1963–1974 Abstract: Across the global community, many countries have been ravaged by the challenge of the COVID-19 pandemic. Nigeria is no exception. Since the country recorded its first index case in February 2020, the number of cases and fatalities has been on the increase. Although the authorities in Nigeria have endeavoured to adopt some meaningful response to the pandemic, with a fragile healthcare system, the pressure posed by this issue is enormous and the matter has persisted. COVID-19 is certainly a zoonotic or environmentally related scourge. In this work, the environmental aspect of the pandemic has been traced and their consequences highlighted. The study also considers the responses to the problem and from the environmental law perspective examines the regulations concerning these kinds of diseases. It is opined that the effective management of the environment by adherence to agreements, laws, and policies, investment in environmental restoration and new technologies, and general reorientation of citizens towards the exploitation and use of environmental resources are better approaches to checking the emergence of this kind of problem in future and generally sustaining a green environment.
Eruaga, Osatohanmwen Anastasia, Abigail Osiki and Itoro Ubi-Abai, ‘Nigeria’s Political, Economic, and Social Dynamics in a Pandemic Era’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 235–272 Abstract: This chapter examines the impact of Nigeria’s containment and mitigation strategies established at the outbreak of the pandemic in the country. The chapter asserts that government intervention reflected a holistic approach which included practical welfare strategies to facilitate the provision of essentials vital for social-economic stability and development. While this approach suggests a significant shift in the government’s neoliberalist stance to a more welfarist outlook, the strategies fail to achieve the desired result due to certain prevailing factors such as corruption and weak institutions. The chapter emphasises the need to urgently tackle the prevalence of these vices to halt the country’s looming socio-economic crisis.
Ezirigwe, Jane and Jan Glazewski, ‘Conducting Socio-Legal Research in a Conflict Area during a Pandemic: Reflections and Lessons for Future Researchers’ (2024) 68(2) Journal of African Law 231–244 Abstract: A ‘sink or swim’ approach has been considered the only way to learn how to conduct empirical research; this should not be the case. Empirical research can be challenging for methodological, practical and ethical reasons; thus there should be detailed and systematic reporting on the methodology adopted. The absence of studies documenting the experiences of researching law implies that important lessons gained by one cohort are not readily accessible in a systematic way for the next. This article presents the methodology of research that was conducted in a conflict area in Nigeria during the pandemic; it aims to provide detailed reporting on the research and highlight the challenges. It offers lessons to future researchers undertaking socio-legal research in a conflict zone, during a pandemic or both. It contributes to the body of knowledge that presents not just what is being done in legal research but how, in order to develop ‘robust and cumulative scholarly traditions’.
Folami, Olakunle and Abiodun Bakare, ‘Prevention of Gender-Based Violence Beyond the COVID-19 Pandemic in South-West, Nigeria’ (2022) 2(2) Humanus Discourse 1–15 Abstract: Gender-based violence from time immemorial has been with the inhabitants of the South-West, Nigeria. It has become a cultural transition phenomenon. Gender-based violence can be described as violence directed against women because they are women or that disproportionately affecting women. COVID-19 pandemic worsens the occurrence of gender-based violence. Lockdown provided opportunities for perpetrators of gender-based violence to attacked women and young girls. Men were at home most times. Offices were lockdown. Movements were restricted. Women lost their jobs, and they became prey to their husbands and outsiders. COVID-19 pandemic presented key challenges in displacement contexts with increased gender-based violence, in addition to and resulting from loss of income and household stress; as well as barriers to help-seeking options for survivors. Gender-based violence is both biological and cultural learning attitude. Cultural Transmission Theory (CT) as a theoretical explanation of the prevalence of gender-based violence in South-West, Nigeria. This paper, therefore, identifies stakeholders on the prevention of gender-based violence such as the government, survivors, development partners, and non-governmental organizations. In this paper, the following prevention mechanisms were suggested such as prompt arrest and prosecution of gender-based offenders, scholarship, and stipends for women and young girls.
Fowowe, Adetomiwa, ‘The Reality of Nigerian Legal System After COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3709757, Social Science Research Network, 20 August 2020) Abstract: There is no gainsaying the fact that the coronavirus (COVID-19) caught the world and every of its sector unawares are we are still napping as to what the solution to it is, more so that the virology is yet known. Within a very short period of its hit, it became a pandemic and has crippled the socio-political and the economic life or the world, the judiciary not spared. In relation to the vast importance of the judiciary, it necessitated its desperation to find a new means of operation; a virtual court system. This paper scrutinizes the importance of a virtual court system in Nigeria vis-à-vis the COVID-19 pandemic. Amongst other recommendations, this paper subscribes to an adequate funding in order to ensure an efficient operation of a virtual court system in Nigeria. :
Gobir, Habeeb, ‘Intellectual Property, SMEs, and Economy Recovery in Nigeria’ (SSRN Scholarly Paper No ID 4016693, 25 January 2022) Abstract: Small and Medium Size Enterprise (SMEs), without any doubt, play an important role in the growth and development of a nation. As a matter of fact, ever since the outbreak of Covid-19, many countries around the world are now shifting their focus to the development of SMEs as the primary driver of economic recovery, and Nigeria should not be an exception. Nigeria, as a case study, is one country struggling to bounce back into normalcy due to the economic implications occasioned by the outbreak of COVID-19. In Nigeria, SMEs play an important role in the country’s economic development. Sadly, despite this, Nigeria continues to struggle to accelerate its development. This study will show the significance of SMEs to the Nigerian economy as well as their role in the recovery process. The paper went on to show how a strong IP regime benefits both SMEs and Nigeria, as well as how a lack of IP awareness among most SMEs contributes to the country’s economic downturn. It was concluded at the end of the paper that SMEs need to protect their IP rights before they can serve as a perfect drive for economic recovery in Nigeria. :
Ibekwe, Chineze Sophia, ‘Legal Implications of Covid-19 on the Employers’ Duty to Provide a Safe Work Environment’ (2020) 101 Journal of Law, Policy and Globalization 196
Igbozurike, John Kennedy, ‘Unraveling the Quandary of Covid-19 on Commercial Transactions Especially in the Wake of Supranational Regulations’ (SSRN Scholarly Paper No 4519972, 24 July 2023) Abstract: Central to the efficacy of commercial activity is mobility – lots of it. To this effect, we have in place, the World Trade Organization (WTO) Rules and the African Continental Free Trade Area agreement (AfCFTA) - some instruments responsible for the regulation of supranational trade and ancillary commercial activities within the globe and Africa respectively. This dissertation seeks to open a discourse along the lines of the implication of border closures on supranational pacts like the General Agreement on Tariffs and Trade (GATT) and the AfCFTA. For apt context, this thesis has recourse to the principle of pacta sunt servanda. Undoubtedly, the digital commerce phenomenon has unlocked seamless trade opportunities. However, these opportunities can only be fostered by mutual supranational trade understanding. To this effect, further emphasis is placed on the role of the AfCFTA in the mitigation of the impact of the pandemic on commercial activities within Africa and ultimately, the African economy. Still on state policy regulation, using Nigeria and the United States of America as models, the thesis asserts that the pandemic has brought to the fore; regulatory hitches at the municipal level specifically (potential) conflicts between tiers of government as they navigate the regulation of public health in a bid to foster seamless commercial activities within their jurisdictions. The lens of the thesis is particularly zeroed in on the U.S Commerce Clause, State Police Power, Nigerian authorities responsible for the issuance of quarantine orders, and regulation of health, safety, and welfare of persons engaged in interstate conveyance and commerce, to mention a few. What is more? The dissertation narrows its focus to the impact of the coronavirus on contracts entered into by individual parties, making allusions to court dispositions in different jurisdictions. The dissertation concludes by proposing a solution force majeure debate as well as a conflict resolution mechanism between the tiers of government in their bid to formulate policies touching on public health and commercial activities.
Iheme, Williams and Sanford Mba, ‘Coping with the COVID-19 Pandemic: A Comparative Study of the Capabilities of the Kenyan and Nigerian Insolvency Frameworks’ (2020) 6(2) Journal of Corporate and Commercial Law & Practice 112–138 Abstract: The COVID-19 pandemic has undeniably ravaged the global economy and plunged many countries in Africa, including Kenya and Nigeria into an economic recession. This article departs from the premise that credit is the lifeblood of market systems. Accordingly, the credit and insolvency laws of both countries must be adjusted in certain ways during and after the pandemic, in order to enable them to cope with the dire economic challenges resulting from the pandemic. The article identifies some material defects in the Insolvency Act 2015 (Kenya) and the Companies and Allied Matters Act 2020 (Nigeria), and argues that these defects will debilitate a meaningful economic recovery from the pandemic. The paper shows the lack of suitability of their existing insolvency frameworks, as well as some aspects of the public law: it proposes a number of tailor-made recommendations that benefitted from the experiences of certain other common law jurisdictions. :
Imoisi, Simon Ejokema, ‘Effect of Covid-19 on the Legal Profession in Nigeria: Historical and Conceptual Perspectives’ (2023) 10(3) Journal of Commercial and Property Law 61–85 Abstract: In the past years, the world has experienced varied kinds of contagious diseases like SARS, Lassa fever, Ebola but none has been contributed so much to global recession as the as 2019- novel corona virus(2019-nCoV) presently known as COVID – 19 which originated from China and spread across the world. The presence of COVID – 19 in Nigeria came as a surprise to everyone and the magnitude of damage it would cause was unpredictable and one the nation did not definitely prepare for and so its sudden presence caused serious economic- social meltdown. The Federal Government began to source for better ways to curb the deadly virus and maintain stability in Nigeria, however, the damage had already been done, the nation fell into a level of economic recession, one it has never experienced in history and up till this moment is still recovering from. All sectors of the economy where badly affected by this pandemic but it has created the largest disruption of the legal profession in human history.
Kouletakis, Jade, Ayoyemi Lawal-Arowolo and Nkem Itanyi, ‘Copyright Law Protection of Films in Nigeria (Nollywood) and South Africa (Sollywood): Pre and Post-Covid-19 Pandemic’ (2023) 26(3) The Journal of World Intellectual Property 436–457 Abstract: The Covid-19 pandemic inflicted socioeconomic harm on an unprecedented scale. Across the world and to varying degrees, cinemas were closed, festivals were cancelled or postponed, and film releases were moved to future dates or delayed indefinitely. In 2020 the entire global theatrical and home/mobile entertainment market totalled $80.8 billion, the lowest figure since 2016 and a decline of 18% from 2019. Theatrical entertainment accounted for only 15% of the total global entertainment revenue, compared to 43% in 2019. While some has been written about the effects of Covid-19 on both international and local film industries, this article seeks to provide an African perspective focusing on the realities in Nigeria and South Africa, respectively. This article examines the importance of filmmaking industries in Nigeria and South Africa as well as the difficulties faced during the Covid-19 pandemic. Copyright laws in both terrains are critically reviewed based on the capacity of these laws to protect the interests of film industries pre and post-Covid-19.
Madueke, Onyedikachi, Allens Iheonu Ololo and Ejike Emmanuel, ‘Post COVID-19 Pandemic Nigeria: Implications for Good Governance’ (SSRN Scholarly Paper No ID 3632039, 21 June 2020) Abstract: Nigeria is going through a perilous time in history as the country is faced with a devastating effect brought about by the deadly spread of COVID-19 pendamic. The measures put in place to curtail the adverse shock of the deadly virus is nothing short of calamitous as they have exposed the Nigerian government inefficiences. A quantum number of Nigerians had died as a result of police/military brutality, hunger and starvation among other anomalies. The discourse, anchored on structural functional explanatory tool of analysis popularised by Spencer Herbert, Talcott Parsons, among others, stressed on the relationship between the various social institutions and the structures that made up the society. The society, acording to the proponents of the theory, is a system with interdependent parts which function together for the stability of the whole. Therefore, to bring about stability and good governance in Nigeria, the Nigerian leaders must strengthen the various institutions and the critical sectors of her economy such as: healthcare, security, education, tourism and hospitality, manufacturing and solid minerals. Nigeria must broaden her revenue base, create sufficient buffers and resilience against exogenous shocks. They should address infrastructural decay, institutional weaknesses and endemic corruption bedeviling her since independence. :
Maigari, Abdullahi Muhammad, Faruk Usman Dauran and Uthman Abdullahi Abdul- Qadir, ‘Covid-19 Lockdown and The Plights of People Remanded in Security Detention Centres: A Socio Legal Analysis’ (2022) 4(1) Walisongo Law Review 1–18 Abstract: The researchers analyzed from sociological and legal perspectives the COVID-19 lockdown and the plights of people remanded in security detention centers in Nigeria. The objective of the study is to identify the loopholes in the Constitution of the Federal Republic 1999 as amended and other relevant legal provisions in Nigeria. The study is an exploratory type of research whose goal is to explore the phenomenon under investigation. This research design is considered appropriate for this paper because the COVID-19 lockdown has explored the weaknesses of the extant legal provisions in Nigeria in a situation like the Lockdown. Data were from secondary sources and were subjected to content analysis. The result revealed that during the COVID-19 lockdown in Nigeria, accused persons, awaiting trial persons and prisoners in different detention centers were detained beyond the legal requirements whereas there is no legal provision that clearly stated remedies.
Moti, Ukertor Gabriel and Jeremiah Tersur Vambe, ‘Responding to Coronavirus Pandemic in Nigeria: The Policy Dilemma of a Vulnerable Nation - A Review’ (2020) 6(4) International Journal of Health, Safety and Environment (IJHSE) 526–533 Abstract: The novel coronavirus pandemic, though mainly a major global public health concern, has significant socioeconomic implications of great consequences to economies and the well-being of the population, just as it is an assessor of the institutional structures and governance framework of nations. Whereas some countries were proactive with comprehensive mitigation, containment and management policies in response to the pandemic, some were in denial and procrastinated. Notwithstanding the initial reaction of countries, the policy actions appear generic in compliance with standard World Health Organization (WHO) protocols: lockdowns, testing and contact tracing, isolation and social distancing. The choices are not easy when it comes to adapting them to country specific contexts. Countries exhibited varying stages of institutional capacity, resilience, inclusiveness and vulnerabilities. Nigeria, Africa’s largest country by population and economy is adjudged as a medium, with varied capacity and high vulnerability entity. This paper is a review of the policy responses and the observed dilemma between science and economic pragmatism. Whereas science advocates flattening the curve which in some cases mean longer lockdowns, lockdown fatigue and restlessness of the vulnerable population occasioned by economic hardship compelled the government to ease lockdown with possible consequence of increase in infections. It may not be plausible to deal with the dilemma during the period of the pandemic, however, we recommended this offers an opportunity for the country to strengthen its health care system, educational institutions and pro-poor policies on post-covid-19. :
Muobuikwu, Chibueze, ‘An Appraisal of the Business Interruption Insurance Coverage in Nigeria in the Face of the Recent COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3677248, 22 April 2020) Abstract: The outbreak of corona virus (COVID-19) pandemic has no doubt, occasioned an unprecedented global human and economic crisis. The resultant lockdown and abrupt shutdown of major economic activities in the world have apparently given rise to several business disruptions and economic losses across the world including Nigeria. According to Kristalina Georgieva, Managing Director of International Monetary Fund (IMF), the economic effect of the pandemic would result in ‘a recession at least as bad as during the Global Financial Crisis or worse’, and this is because the world is currently experiencing the most difficult economic situation since World War-II. The consequence of the foregoing crisis is that many organizations would be seeking for ways to ameliorate the effect of the pandemic on their businesses. One of the options open to some businesses is to have recourse to their insurance policies, and the most significant insurance coverage which business owners would resort to, is the business interruption insurance coverage. This write up examines the concept of business interruption coverage; the extent which such insurance claims may be potent for the insured business owners in the face of the recent pandemic, and the extent of its viability in the light of the Nigerian insurance legal framework. :
Nnawulezi, Uche and Salim Bashir Magashi, ‘Executive Orders and Fundamental Rights Regime in the Wake of COVID-19 Pandemic in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 151–171 Abstract: This paper is an exploratory study that focused on executive orders and fundamental rights regime in the wake of Covid-i9 Pandemic in Nigeria. The Nigerian fundamental rights regime is today bedeviled with series of challenges such as issues of suspension of laws and the introduction of several measures needed to deal with the spread of the virus that undermines human rights and rule of law. Other issues include powers given to the security forces to monitor and enforce the lockdown orders are not always understood or obeyed. The current discourse on this issue is in line with the incessant complaints by Nigerians that the stay at home restriction order have had deleterious consequences on the poor, the low income earners and the millions of Nigerians who rely on informal activities to eke a living for themselves. Thus, the emphasis here is on the emergence of the executive orders in Nigeria and the current challenges it has posed on fundamental rights regime in the wake of COVID-19 Pandemic. This paper adopts analytical and qualitative approach and builds its argument on existing literatures which is achieved by a synthesis of ideas. More importantly, necessary recommendations are made. This paper concludes that the essence of re-examining the executive orders is to ensure that it will be used in a manner that will not undermine the gains made in the last three decades in recognizing, protecting human rights and respect for the rule of law in Nigeria.
Nwaechefu, Hilary and Adedeji John Oluyinka, ‘Legal Perspective of the COVID 19 Pandemic Viz-a-Viz the Violation of Human Rights in Nigeria in 2020’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 69–81 Abstract: The COVID 19 pandemic regime triggered the violation of human rights by the security agents in Nigeria. Amnesty International, the Human Rights Commission, Action aid, had condemned violation of human rights by security forces in Nigeria. This paper adopted non-doctrinal and qualitative approaches using legislations, international statutes, journals, newspapers, and internet and relevant texts. The article revealed that, despite the 1999 Nigerian Constitution, the United Nations and the African Charter on Human and Peoples Rights guaranteeing the human rights of all persons, citizens were killed extra-judicially with impunity. The article recommends that the African Union and the United Nations direct the Nigeria government to protect the rights to life and dignity of the human person and make reparations to the next of kins to those extra- judicially killed under the COVID 19 pandemic because Nigeria was not at war as envisaged under section 45 of the Nigerian constitution.
Nwaeze, Godstime, ‘Deploying Taxation as a Viable Instrument for Economic Recovery in a Post-Pandemic Nigeria’ (SSRN Scholarly Paper No ID 4008279, 13 January 2022) Abstract: The unprecedented outbreak of COVID-19 has left its ugly hands on every aspect of life, especially the economy, ranging from pressure on a weak healthcare system to loss of trade, dwindling revenue, subdued capital flows, and tight financial condition amid mounting debt. Taxation, being the strongest link between the state and the people, and the major determinant of other macroeconomic indices including but not limited to inflation, fiscal deficit, and public debt, becomes an indispensable instrument for economic recovery in a post-pandemic Nigeria. Thus, paper presents a thoughtful exploration of how to recover the economy via taxation from the impacts of the pandemic. :
Nwafor, Gloria C and Anthony O Nwafor, ‘Covid-19 Implications on Right to Healthcare in Nigeria and China’ (2021) 25(9) International Journal of Human Rights 1489–1502 Abstract: The quest by states to contain the spread of the Covid-19 has led to the adoption of extraordinary measures to deal with the extraordinary situation. Some of those measures have the tendency to impact on the citizens’ right to healthcare as protected by the domestic laws of such states and by the relevant international instruments. The paper examines the impact of the responses by the governments in Nigeria and China to the Covid-19 pandemic to ascertain the extent to which the right to healthcare of citizens are respected, and concludes that the governments in the respective countries failed to fulfil their obligations to their citizens. :
Nweke, Emmanuel Onyekachi, Nwalelele Okezie and Clifford Kinika, ‘Law and Practice of E-Meetings during Covid-19 in Companies in Rivers State’ (2022) 8(1) African Journal of Management and Business Research 99–109 Abstract: The paper examined law and practice of e-meetings during Covid-19 in companies in Rivers State. The paper deployed desk-study approach in which academic materials were sourced from newspapers, internet, textbooks and other text to explain the need for e-meetings during Covid-19 pandemic in companies operating in Rivers State. The paper examined the concepts of e-meeting to mean electronic meeting carried out using audio-teleconference devices. The paper reviewed the pros and cons of virtual or e-meeting which intends to alert stake-holders on the need to step up facilities and resources required for e-meetings. It compared the face-to-meeting with that of e-meetings. The need to make adjoining facilities required for e-meetings, need for the training and retraining of staff were advocated. The paper outlined laws or rules allowed during e-meetings in the pandemic. The paper concluded that e-meeting otherwise put, electronic meeting is essential to keep business running during Covid-19 and suggested among others that management of companies operating in Rivers State, should provide electronic meeting facilities in order to avoid business obstructions during Covid-19 pandemic.
Nwokeke, Chidera, ‘A Perusal on COVID-19 and Rights of Patients’ (SSRN Scholarly Paper No ID 3579257, 18 April 2020) Abstract: A perusal on Covid-19 and the rights of patients in Nigeria. This article examines the position of our laws with regards to patients’ rights and its enforceability in our Courts and the remedies available to a patient. :
Nwokeke, Chidera, ‘Does the Law Support the Grant of Posthumous Pardon in Nigeria?’ (SSRN Scholarly Paper No ID 3579276, 18 April 2020) Abstract: This article examines the position of our law with regards to granting of posthumous pardon. Who can benefit from presidential pardon? The effect of presidential pardon and its impact on COVID-19. :
Nwosu, Chinaza Duke, ‘Making a Case for the Abolishment of Fresh Hearing in Trial De Novo by the Application of Audio-Visual Coverage of Testimonies’ (SSRN Scholarly Paper No 4867227, 15 September 2023) Abstract: The COVID-19 pandemic brought along with it a wave of transition in all of the world’s institutions and economies. These changes have hitherto been called for, albeit with very less attention paid to it because of the lack of a quick realization of the essence on the part of concerned stakeholders. However, the surge of the pandemic brought with it an imperativeness for the world to reconsider its conservatism on these overt yearnings. One of such is the increased use of technology in legal systems, which for some countries of the world, had become a norm to a recognizable extent. For Nigeria, given the ostensible insistence on analogue systems, players and stakeholders had to fully reconsider the situation. And so, because the pandemic tended implicitly to put the world to a stop, and the legal system had to find a way to go on lest there be anarchy, the system had to apply the use of technology in a more drastic way. Till date, albeit reluctantly, the Nigerian Legal System (NLS) having learnt a thing or two, have consistently driven itself towards ensuring a continuous growth alongside the dynamism (in terms of technology) of the society it tends to govern, like the allowance of virtual hearings. This work tends to bring to fore a practice of justice delivery in the NLS that yields one of the greatest injustice and inhumanity on litigants; the practice of fresh hearing in trial de novo. The writer is able to demonstrate the unjust hardship occasioned on litigants on the strength of this practice, and the writer posits that such hardships could be avoided by the application of audiovisual technology. This work employs the analytical and doctrinal methods of research, and alludes to primary and secondary sources of law, in its submissions.
Obiaraeri, Nnamdi Onyeka and Chinyere Obiaraeri, ‘Rethinking the Future of Legal Education in Nigeria in a Covid-19 Pandemic Era’ (2022) 3 International Journal of Law and Clinical Legal Education 9–18 Abstract: The paper examined the future of legal education in Nigeria against the wake of the COVID-19 pandemic that ravaged the globe and reordered the way things are done including imposition of complete or partial lockdown and ban or restrictions on mass gatherings to stop its spread. The myriads of problems and challenges that confront legal education in Nigeria were identified including the fundamental fact that education is presently nota justiciable right under the Nigerian constitutional order in contradistinction to what a comparative study of the constitutions of other African countries like Uganda, South Africa, Kenya and Ghana reveal. Using the doctrinal method of analysis of the comparative constitutional, statutory and case law authorities on the subject matter, the paper viewed among other things that there must be a paradigm shift via constitutional amendment on how the right to education is protected in Nigeria and further recommended hands-on solutions to legal education in Nigeria including adoption of online learning and examination techniques to reduce physical contact, avoid community spread and maintenance of social distancing consistent with COVID-19 protocols.
Oboirien, Katumi, ‘The Act of Torture and Inhumane Treatment as Human Rights Violations during COVID-19 in Nigeria’ (SSRN Scholarly Paper No ID 3688363, 7 September 2020) Abstract: In December 2017, Nigeria signed into law the Anti-Torture Act 2017. This was done in acknowledgement of her obligations under the United Nations Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment and its optional Protocol. Bearing in mind that there were existing laws which provided for torture, the Act was enacted to fill the gaps in the existing laws such as defining the term- torture and prescribing adequate punishment for the offenders. This article highlights some key provisions under the Act, laying particular emphasis on the duties of the State to protect its citizens from all forms of violations of their human rights. In this instance, we assert that the right to freedom from torture, cruel, inhuman and degrading treatment is a non-derogable right and law enforcement officers are duty-bound to respect this right in whatever situation, even in the face of the COVID-19 Pandemic. Also portrayed in this article are some situational analysis of torture victims as well as court decisions on the matter. We conclude by restating some of the acts performed by law enforcement officers which constitute torture and proffer some recommendations. :
Okeke, Happiness Chidiogo and Beatrice N Okpalaobi, ‘Legal Analysis of the Protection of the Right to Life of Health Workers In Nigeria During Pandemics: A Case Study of the Covid-19 Pandemic’ (2024) 8(1) African Journal Of Law And Human Rights 116–121 Abstract: Life is central to human living because once life is lost it cannot not be restored. Life is tantamount to human existence, the foundation of man as an individual and as a member of society. The right to life is not just any one of the fundamental rights in the lists established by the well-known instruments of human rights protection but is the pedestal upon which other rights stand. Pandemic is a term used to describe the rapid spread of transmittable infectious or communicable disease over several continents or worldwide. Once an epidemic becomes global and affects a large percent of the population it becomes known as a pandemic. Many outbreaks have taken unacceptable toll on the right to life of health workers, from MERS to Ebola, Laser fever and the recent COVID-19 pandemic. The aim of this study was to examine if the right to life of health workers in Nigeria are protected during pandemics using the COVID-19 pandemic which is the most recent pandemic as a case study. The research methodology adopted was doctrinal and the approach was analytical and descriptive. The authors relied on primary and secondary sources for this research work. It was found that health workers are the most affected during the outbreak of pandemics because they are always the first to come in contact with victims even when the infection is still at its window period. It was also discovered that there is no legislation in Nigeria specifically protecting the right to life of health workers during pandemic and non was promulgated during the recent pandemic COVID-19 which affected the whole world. The study further revealed that during the pandemic there were insufficient person protective equipment (PPE) for health workers to protect their lives during the COVID-19 pandemic and the federal government took no specific steps to protect the lives of health workers during the pandemic. The authors recommended that the laws should be promulgated to ensure the adequate protection of the lives of health workers during pandemics in Nigeria. It was further recommended that the National Health Act should be amended to include sections on protection of right to life of health workers in Nigeria.
Okongwu, Chi Johnny, Simon Ejokema Imoisi and Ezinwanne Anastasia Nwaobi, ‘The Impact of COVID-19 on the Legal Profession in Nigeria’ (2023) 14(1) Nnamdi Azikiwe University Journal of International Law and Jurisprudence 63–75 Abstract: The aim of this paper is to critically examine the impact of COVID - 19 on lawyers in Nigeria, positive or negative, identify the general implications and possibly proffer solutions. This paper exists to reveal the vulnerability of lawyers in Nigeria and the legal profession in the face of the COVID -19 Pandemic lockdown and unless something apt and drastic is done and seen to be done, the challenges will remain the same. The digitalization of lawyers and the legal profession is very much needed and should by greatly encouraged to enhance speedy improvement and progress in the legal system and justice delivery.
Oladele, Grace Abosede, ‘Legal Implications of Human Rights Violations During COVID-19 Lockdown in Nigeria’ (2020) 100 Journal of Law, Policy and Globalization 86–93 Abstract: This paper examines human rights violations carried out by law enforcement officers during the COVID-19 lockdown in Nigeria. These include torture, inhuman treatment and extra-judicial killings. It examines the rights violated under international, regional and Nigerian laws. It also considers judicial decisions. It examines the laws prohibiting torture, inhuman treatment and extra-judicial killings along with factors responsible for persistent human rights violations in Nigeria by law enforcement officers such as inconsistent prosecution of erring officers and lack of protection of victims from threats and reprisal attacks which has made conviction difficult. It concludes that until these factors amongst others are addressed, law enforcement officers will continue to violate the rights of Nigerians with impunity. :
Oluduro, Olubayo, ‘Walking a Tightrope: Balancing Human Rights and Public Health Measures During the Covid-19 Pandemic in Nigeria’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 223–254 Abstract: As of 8 July 2021, there were 184,820,132 confirmed cases of Covid-19 globally and more than 4,002,209 deaths. In Nigeria, the government has instituted regulations and emergency measures to combat the pandemic, but some of them have grave implications for human rights. This chapter examines the pandemic’s impact on the human rights of vulnerable and marginalised groups in Nigeria, the nature of the measures taken, and their constitutionality and effectiveness (or otherwise). It argues for the need to adopt a rights-respecting approach in combating Covid-19 as well as other future public health emergencies.
Olujobi, Olusola Joshua and Tunde Ebenezer Yebisi, ‘Tackling Corruption in the Distribution of Covid-19 Palliatives and Public Health Facilities in Nigeria: Legal Insights and Strategic Blueprint for Future Emergencies’ (2023) Journal of Financial Crime (advance article, published online 14 August 2023) Abstract: The purpose of this study is to examine the corruption prevalent in the distribution of COVID-19 palliatives during the lockdown and movement restrictions in the country. This study seeks to analyse the current state of corruption in the distribution of COVID-19 palliatives and public health facilities in Nigeria while also providing a legal insight and strategic blueprint to combat corruption. To this end, this study will address the current legal framework for combating corruption and build upon this to formulate a working strategy for tackling corruption in the future. Using a doctrinal legal research methodology, this study draws upon existing literature, tertiary data sources and information from the Nigeria Centre for Disease Control. The collected data is analysed and compared with current literature to identify key findings. Rent-seeking and utilitarian theories of the law were examined to guide this study. This study offers useful insights into combating corruption. The use of this method is justified, as it enhances the credibility of the findings on the importance of strategies for future emergencies. This legal research approach is consistent with the law and can be easily verified. The empirical aspect of this study involved a survey of multidimensional health-care and economic data set of 36 states in Nigeria plus the Federal Capital Territory on COVID-19 in Nigeria. A survey linearised regression model was estimated to determine the influence of government revenue and public health-care facilities in the control of the virus spread in Nigeria. Findings This study reveals the need for emphasis on the imperative of combating corruption in the distribution of COVID-19 palliatives and establishing economic resilience through transparent and accountable practices, supported by legal frameworks. Rent-seeking and utilitarian theories of law are evaluated because of their impacts on combating corruption. The limitation of this study is the intricacy of gathering data on COVID-19 palliatives corruption in Nigeria because of secrecy and the absence of reliable data on the subject. Practical implications Estimating the exact number of stolen palliatives and their fiscal impact on Nigeria’s economy proves to be a formidable task because of the covert nature of corruption. This study equips policymakers in Nigeria with a better understanding of the legal challenges posed by corruption in the health care sector and provides an effective strategy to combat it. The lack of reliable data on the extent of palliative theft hinders the ability of lawmakers to enact effective legislation and strategies for combating corruption in the distribution of COVID-19 palliatives and addressing future emergencies in Nigeria. The policy implications of this study can assist policymakers in Nigeria and other countries in formulating measures to combat corruption in the distribution of COVID-19 palliatives and other future emergencies. Furthermore, it recommends the overhaul of anti-corruption laws and mechanisms in Nigeria to ensure effective measures against corruption. In conclusion, this study contributes to knowledge by proposing a legal model centred on people’s participation to enhance transparency and accountability in future palliative distribution processes. This study recommends legal strategies that can effectively address corruption in future emergencies or shocks. This study proposes a strategic blueprint to tackle corruption in the future. This blueprint includes an analysis of existing laws and regulations, as well as potential policy changes and legislative reform. This study also includes recommendations for improved enforcement and oversight mechanisms and for improved public awareness and education. As part of this, this study considers the potential for public–private partnerships to increase transparency and accountability in public health and health-care services.
Omotuyi, Opeyemi Yetunde, ‘Responding to the Covid-19 Pandemic: Implications for Law and Development in Nigeria’ (2022) 2(3) Law and Social Justice Review 109–117 Abstract: The COVID-19 pandemic exposes like never before the ills and weaknesses of the Nigerian society. Several social challenges such as inequality, poor educational and health facilities, and inadequate social amenities, among others, were aggravated by the pandemic. This has necessitated an effective response to prepare for the mitigation of the impacts of any such emergencies in the future. According to the United Nations, such response calls for shared value partnerships and solidarity across the private and public sector, as well as other stakeholder groups. Adopting a desk-based research methodology, the author explores the potential roles of the public and private sectors in mitigating the impacts of such emergency situation in Nigeria. Such roles include the implementation of an effective corporate social responsibility (CSR) regime, promotion of social entrepreneurship, as well as implementation of relevant legal reforms on social protection. The author posits that these will help prepare for, and mitigate the adverse socio-economic impacts of any such future emergencies in the country. Hence, relevant recommendations are proffered to conclude the study.
Oni, Samuel and -Dada Moyosoluwa Dele, ‘Legislative Oversight and Executive Aggrandisement in the Nigeria’s COVID-19 Emergency Governance’ (2022) 10(2) The Theory and Practice of Legislation 186–202 Abstract: The COVID-19 pandemic has compelled governments across nations of the world to devise and implement emergency measures for curtailing the spread of the lethal virus. A fundamental debate is the relevance of legislature’s involvement in the emergency decision-making and the extent to which this representative assembly is able to assert its oversight role by making the government accountable to the public in emergency governance. Nigeria, like many other nations across the globe, has called upon government emergency powers to deal with the pandemic. This paper examines the imperative of legislative oversight of emergency governance and interrogates the extent to which the legislature has been able to monitor, control and make government accountable to the public in the COVID-19 emergency response in Nigeria. The study which is qualitative, relied heavily on secondary data and adopted a systematic literature review for data collection and analysis. Findings revealed the limited legislative oversight of government’s emergency declarations for dealing with the pandemic which further perpetuated executive dominance in the governance process of Nigeria. The invocation of the ‘Quarantine Act 1929’ by the President instead of its state of emergency powers, the latter which constitutionally requires legislature’s oversight, and the subsequent issuing of COVID-19 regulations, portrays executive aggrandisement. The relegation of the legislative oversight in the use of emergency powers for responding to the COVID-19 pandemic enhances executive dominance and undermines the democratic principles of checks and balances with its concomitant implications for accountability, inclusivity and democratic legitimacy required in emergency governance.
Onoge, Elohor Stephanie, ‘Monitoring and Evaluating the Impact (Post-Legislative Scrutiny) of Emergency Regulation in Response to the COVID-19 Pandemic: A Case Study of Nigeria’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 39–46 Abstract: The threat posed by passing emergency laws and policies in response to the coronavirus (COVID-19) pandemic can be said to be a critical precursor of human rights abuses. In response to the COVID-19 pandemic, the Nigerian President issued the COVID-19 REGULATION 2020 exercising his powers under the Federal Quarantine Act, CAP Q2 Laws of the Federation of Nigeria 2004. Based on this, the Nigerian Federal Government has undertaken stringent measures, enforced restrictions and cessation of movement, social and economic activities in Nigeria to curtail the pandemic. Nigeria has employed human control to stop the disease’s spread, including travel bans, quarantine orders, social distancing, and lockdowns. The measures applied to curtail the spread of COVID-19 have an undoubted impact on human rights. The Nigerian government implemented these restrictive measures which impinge on human rights and democratic processes with authoritarian provisions. This study analyses the emergency measures implemented by the Nigerian government and human rights’ infractions and considers Post-Legislative Scrutiny to mitigate the government’s legislative actions as a safeguard for human rights and democracy in Nigeria. To ensure true democracy, Nigerian regulations, laws, and policy response to COVID-19 must align with international human rights commitments. And the temporarily imposed restrictions on rights are reviewed by the Legislature and do not become permanent. Questions to be addressed in this paper are: (1) Is the breadth of powers currently enjoyed by executive bodies, such as Public Health authorities and security forces under scrutiny and review of the Legislature? (2) Are there safeguards put in place by the Legislature, as an oversight to ensure democratic rule and respect for human rights in Nigeria? The paper uses the qualitative research method. It relies on content analysis of COVID-19 regulatory and legislative provisions, academic literature, articles, journals, and newspaper publications. :
Orie, Erimma Gloria, ‘Climate Change, Sustainable Health and COVID-19 Pandemic in Nigeria: The Legal Issues in Perspective’ (2023) 19(1) Medical Sciences Forum 7 Abstract: The paper examined legal impediments to sustainable health in Nigeria due to the impact of climate change (CC) exacerbated by coronavirus (COVID-19). COVID-19 has presented the world with a crisis greatly accentuated by the urgency with which we need to fight the CC debacle, making the need for sustainable development (SD) more obviously acute than ever and requiring a response rooted in the principles of SD. On 29 September 2020, a total of 1 million COVID-19 deaths had occurred worldwide, while in Africa, there were about 35,954 cumulative fatalities. In Nigeria, the situation was similar. This paper found that despite the ravaging COVID-19 pandemic, health is still a low priority in Nigeria; 4.526 percent of the country’s budget was appropriated to the health sector in 2021 and 4.3 percent in 2022, contrary to the 2001 Abuja Declaration by African leaders and the 15 percent value stipulated by the WHO. The challenge is that Nigeria’s efforts in attaining sustainable health and eradication of COVID-19 are arbitrary and have been hampered by the absence of tested laws on CC andCOVID-19, thereby resulting in avoidable fatalities. Using analytical research methodology and drawing from global best practices to achieve sustainable health, this paper recommended the incorporation of legal and institutional frameworks to combat COVID-19 pandemic in Nigeria.
Osiki, Abigail et al, ‘COVID-19 Pandemic, a War to Win: Assessing Its Impact on the Domestic Work Sector in Nigeria’ (2023) Labour and Industry (advance article, published online 26 Mar 2023) Abstract: This article examines the effects of the COVID-19 pandemic on the work conditions of domestic workers in Nigeria. We use four indicators – earnings, access to social protection, working conditions and labour protections to provide a nuanced assessment on the impact of the pandemic on domestic workers. Domestic work is an important aspect of productive labour and an indispensable factor that contributes to the well-being of households and the economy. Indeed, the enormous contribution of this sector to societies has been further exposed by the COVID-19 pandemic. However, while domestic workers are lauded as essential workers, their work remains extremely vulnerable to exploitation and human rights violations, and the pandemic has aggravated this situation. In the results, we find that while many domestic workers did not lose their jobs, their earning power dropped because of low wages in the sector. Furthermore, only 6% of survey respondents reported having access to the government’s social protection measures. The findings of this study emphasises the need for the development of a regulatory model which considers the realities of the domestic work sector. Data used in this article draws from questionnaires administered on 220 domestic workers across four geo-political zones of Nigeria.
Owa, Funmilola Temitope et al, ‘Impact of COVID-19 on Community Relationship and Technical Preparedness of Law Enforcement Agencies in Nigeria’ (2020) 5(2) KOGJOURN 128–143 Abstract: The covid-19 pandemic has activated business unusual for the Nigeria law enforcement agencies and fashion unprecedented challenges as crime patterns went virtual away from the physical search, arrest and charge which the agencies are used to. Station offices went dry as reactive policing; complainants coming to report cease due to the implementation of covid-19 safety protocols. It is against this backdrop that this study investigates the impact of covid-19 on community relationship and technical preparedness of law enforcement agencies in Nigeria. The study focused on Department of State Services, The Nigeria Police Force, The Nigeria Security and Civil Defence Corps and The Economic and Financial Crime Commission in Ilorin, Kwara State. The study engaged survey research design; questionnaires were designed in five-point Likert scale to extract primary data. The questionnaires were purposively distributed to officers of these security agencies, simple ordinary regression was used to analyze the data. This study was underpinned by the crime pattern theory. Findings from the study revealed that covid-19 has a significant and positive effect on community relationship and technical preparedness of the Nigeria law enforcement agencies. Thus, the study recommends that the laws enforcement agencies should use the Covid-19 period to educate, enlighten the populace and link the endangered one to palliative centers rather that the extortion and harassment of the people while government and head of these security agencies should step up the technological and trained manpower level to be equal with the world best standard and practice on law enforcement. :
Owolabi, Kudirat Magaji W, ‘Impacts of Covid-19 on Development of Legal Research in Nigeria’ (2022) 4(1) GLS Law Journal 37–53 Abstract: The Corona Virus pandemic otherwise known as (COVID-19) has been described as the most devastating health crisis in the last 100 years. It negatively impacts not only on health also on social, economic and wellbeing of the global population. The government through its efforts to curtail the spread of the pandemic has diverted and prioritised resources meant for legal research to fight COVID-19. A doctrinal and non-doctrinal research methods of gathering data were adopted. The quantitative data was obtained using questionnaires as a legal research tool on thirty (30) researchers within the six geopolitical zones in Nigeria. The data were analysed using descriptive statistics and content analysis. This is to provide an overview of how the government’s response to COVID-19 is affecting legal research and development in Nigeria. The paper finds that little attention is being paid by the Government to legal researchers in term of research funds and grants. The paper recommends equal balance of the Government intervention particularly in the era of pandemic. It is of the view that such legal projects are essential and can be useful to establish policies, strategies and action plans that will cater for our nation in the event of a future pandemic.
Pereira, Eduardo G, Tolulope O Taiwo and Ngozi Chinwa Ole, ‘Addressing Residual Liability and Insolvency in Disused Oil and Gas Infrastructure Left in Place: The Cases of Brazil, Nigeria, and Trinidad and Tobago’ (2020) 11(2) Journal of Sustainable Development Law and Policy (The) 326–361 Abstract: This article analyses the decommissioning framework for oil and gas infrastructures in Brazil, Nigeria, and Trinidad and Tobago. It examines whether the existing provisions in each country are able to guarantee that the government and, by extension taxpayers, do not bear the costs of decommissioning and, the consequences of insolvency on residual liabilities. An additional motivation for this examination is the ongoing Coronavirus Disease 2019 (COVID-19), a pandemic with significant adverse impacts on the oil and gas industry. A likely consequence of the economic devastation from this is the insolvency of any party with decommissioning obligations.The article argues that the provisions of the Brazil petroleum legislation on the reversion of abandoned installations to the government could imply that taxpayers have to bear the residual liabilities without any compensation from the concerned concessionaires or contractors. It also argues that the provisions of the Petroleum Law to the effect that ‘the reversion of facilities does not entail any expense whatsoever for the Brazilian government ’does not certainly translate to pecuniary compensation to the latter for assuming the future residual liabilities from abandoned installations. The Nigerian and the Trinidad &Tobago Decommissioning Framework also suffer the latter risk of the government bearing the residual liabilities for such disused installations.In Nigeria, the framework is silent on who bears the residual liabilities for disused installations. However, it is argued that the provisions of the Production Sharing Contracts on the transfer of ownership to the Nigerian government implies that they would have to bear eventual liabilities for such disused installations. Even in cases where the licensee or contractor may bear the burden of residual liabilities, the problem of future insolvency and cessation of such companies may entail that taxpayers bear the burden of residual liabilities. The article concludes with key recommendations on how to address the identified gaps using lessons from best practices such as United Kingdom, Norway and United States of America. One of such proposals is on the allocation of liability where there is a transfer of interest. Another is for joint and several or at least secondary liability of responsible parties even after decommissioning activities are over; a recommended provision to this effect is also provided. The third recommendation is on how time-constrained residual liability can be used alongside lump sum payments to limit the State’s financial exposure for decommissioning costs. :
Rabilu, Auwalu and QaribuYahaya Nasidi, ‘COVID-19: Tele-Regulation of Broadcast Coverage of Public Health Emergencies in Nigeria’ (2021) 3(1) Ianna Journal of Interdisciplinary Studies 28–40 Abstract: Coronavirus disease (COVID-19) has presented a severe challenge to broadcasters globally. How broadcast media stations in Nigeria responded through their coverage is deserving of scholarly attention. How regulatory agencies performed their role during the out of the virus is equally worthy of scholarly attention. :
Sa’adu, Hafsat I, ‘Impact of COVID-19 Pandemic on Taxpayers in Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 190-207 Abstract: There is no doubt that the outbreak of Corona Virus Disease (COVID-19) strikes the world with unparalleled disruption in economic and business activities. The impacts of Covid-19 pandemic have dealt a serious blow on businesses, households, individuals and revenue generation by government across the globe with no exception to Nigeria. As a result, Nigeria introduced certain tax measures through Emergency Economic Stimulus Bill 2020 to mitigate the impact of the pandemic on taxpayers but these measures are inadequate and in some way impracticable. The measure includes a temporary relief to companies and individuals to alleviate the adverse financial consequences of a slowdown in economic activities as a result of Covid-19 pandemic. The paper argues that it is clear that the Covid-19 pandemic has drastically reduced business activities and the Bill does nothing to reduce or remove the existing tax burden but simply postpones same to a later date. This negates section 14 (2) (b) of the Nigerian Constitution 1999 as amended which provides that the security and welfare of the people shall be the primary purpose of government. This raises a critical question as to whether revenue generation by the Nigerian government is more important than preventing hardships and reducing burden of Nigerian taxpayers whose welfare the government sworn to protect through the Constitution. The implication is that Nigerian government needs to revise its tax regime encompassing incentives such as tax credits, write-offs and tax holidays in a bid to provide adequate reliefs to the taxpayers pending the eradication of the pandemic and a return to economic stability.
Shemudara, Olubusola Tunde and Victor O Ayeni, ‘Law and Religion: The Challenges of Citizens as a Result of COVID-19 Pandemic in Nigeria’ (2021) 3(1) International Review of Law And Jurisprudence 166–170 Abstract: Religion and law play a vital role in maintenance of peace and order in our society. Law is intrinsically related to the society likewise religion. Religion is connected with belief and we have people who are ready to die for what they believe in. Many scholars had written and philosophised on the relationship between law and religion jurisprudentially. The need to pragmatically relate these two concepts to the current greatest challenge of the world, Covid -19 pandemic necessitated this work. This paper therefore, will be a reflection on the relationship between law and religion, the impact of law if any, on the exercise of right of freedom of religion particularly during this era of Covid-19 Pandemic as a result of restriction laws on religion. It finally concludes that law as a concept in a society is much stronger than religion irrespective of their semblance and nexus; that the two are separate; although, the working together of the two will make and build a better society. :
Shodunke, Aliu Oladimeji, ‘Protection or Predation? Examining COVID-19 Policing and the Nuances of Police Corruption in Nigeria’ (2024) 34(5) Policing and Society 467–484 Abstract: The bulk of scholarship on police intervention in enforcing COVID-19 pandemic-imposed restrictions focuses on police misconduct, securitisation, human rights, police preparedness, and legitimacy, but empirical research on police corruption during the restriction in Nigeria is sparse despite reports of pervasive police extortion and bribery. Thus, this study fills the academic gap by examining the dynamics of police predation and corruption during the enforcement in Nigeria. With interview data, I uniquely examined the intervention from the purview of predatory policing – an aspect of policing that is understudied in the context of COVID-19 policing despite its relevance in contemporary discourse on social control. Evidence indicates that, as COVID-19 policing characterised predation in Nigeria, the embedded problems of police corruption revolve around unresolved police institutional challenges and police-public connivance that results from moral decadence, thereby portending gloomy implications for law enforcement and society. Therefore, advancing and implementing police reforms, addressing moral corruption, and resolving widespread socioeconomic problems are very critical in the effective policing and containment of future public health crises.
Society for Corporate Governance Nigeria, ‘An Insight to the Corporate Governance Implications of Changes to the Companies and Allied Matters Act 2020’ (SSRN Scholarly Paper No ID 3673326, 13 August 2020) Abstract: The Companies and Allied Matters Act (CAMA) can be accurately described as the bible or grundnorm of corporate dealings and governance in Nigeria, which should account, in part, for the pomp and pageantry ensuing the August 7th, 2020 presidential assent of the CAMA 2020 Bill into law. As it signifies the first major overhaul of the CAMA 1990 (its predecessor) which was crafted in line with the English Companies Act of 1985 and although its English compadre has undergone numerous amendments since its inception, the CAMA 1990 continued its reign, which accounts for the overwhelming buzz following its repeal. The other reason can be cited from the innovations embedded in the Seven (7) Part, Eight Hundred and Seventy (870) sections of the CAMA 2020 , with about 167 new sections, some of which could not have come at a better time. This is so, seeing as boards and management alike have been thrown into unique perplexing positions as they continue to navigate their corporations through the unusual normal brought about by the COVID 19 pandemic and efforts to flatten the curve of infected cases. For instance, one of the unique perplexing positions for corporates was, could companies hold AGMs virtually in Nigeria? To which, the CAMA 1990 did not clearly prescribe the mode of conducting such meetings. Hence, leaving eager companies, at the time, to fall to the cardinal principle of law, that what is not expressly forbidden is permitted. CAMA 2020 remedies this as it provides for remote or virtual general meetings. This is just one of several innovations inserted into the new Act. This explains the thrill surrounding its presidential assent and reasons as to the expectations of these new sections as well as the amendments to our body of corporate law. This paper provides an insight and analysis of relevant introductions of the CAMA 2020 as it relates to governance and postulates how these provisions will affect corporate governance going forward. :
Sodipo, Bankole, Titilayo Aderibigbe and Daniel Ozoma, ‘Stigma, COVID and Health Status Related Discrimination under Nigeria Law’ (2022) 29(1) Journal of Law and Medicine 245–253 Abstract: Stigmatisation of a person often leads to a demeaning treatment of the person by the public. There is a growing stigma about COVID-19 resulting in denials by some persons that members of their family died of COVID. This portends danger to public health as data and information-sharing are important ways of curbing challenges to public health. Stigmatisation may result in treating persons with health challenges like COVID in a discriminatory manner. This article reviews the remedies available to persons who have been discriminated against on the grounds of their health condition. It examines the constitutionality of the powers to restrict movement and the like, made to address the COVID-19 pandemic. It suggests how health stigmatisation can be curbed.
Solahudeen, Isa Olawale and Abdullahi Salihu Abdulrauf, ‘Appraising the Effects of COVID-19 Pandemic Containment Measures on Human Rights in Nigeria: Islamic Law Perspective’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 82–102 Abstract: The COVID-19 is a viral disease caused by a new coronavirus. This disease first emerged in December 2019 in Wuhan, China. Right from there, it spread to almost all the countries of the world. Henceforth, the World Health Organization (WHO) declared that the disease has become a global pandemic. The scale and severity of the COVID-19 pandemic obviously upsurge to the point that large number of deaths has been recorded throughout the world. This obnoxious development has necessitated Nigerian government, like other nations, to impose containment measures to the spread of the disease. These measures include restrictions on movement; closure of religious, economic, and educational places, and ban on social gatherings. However, these measures have negative impacts on certain human rights such as right to freedom of movement; right to life; right to property and others. Thus, this paper examines the infringement upon those rights from standpoint of Islamic law. The paper adopts content analysis and thus relies on both primary sources such as the Qur’an, the Hadith and the 1999 Constitution of Nigeria and secondary sources such as articles in journals, internet materials and text books. This paper found that in the context of serious health threats and public emergencies capable of undermining the life of the nation, restrictions on some rights are justified under Islamic Law provided they are strictly required and are neither arbitrary nor discriminatory in application. The paper concludes by recommending that regards must be had for human rights when implementing COVID-19 preventive measures.
Temidayo, Akindejoye, Olabanjo Olumide Ayenakin and Fateropa Tolulope Omolola, ‘Post Covid 19 Economy in Nigeria: The Role of Law for Sustainable Economic Development’ (2022) 10(2) Global Journal of Politics and Law Research 23–31 Abstract: Covid-19 otherwise known as Corona virus has impacted negatively on global economy and it may take time for nations of the world to come out of economic depression occasioned by the pandemic. This paper qualitatively identifies the roles of laws in post covid 19 economic recoveries. Specifically, the article seeks to asses the degree with which law promotes economic sustainability in the areas of banking & Finance, dispute resolution, energy, infrastructure, insurance and transportation. It also examines the extent to which economic growth might be affected if laws are not clearly defined, made public and applied in a consisten manner. Provision and application of legal frameworks in these key areas of the economy will trigger quick recovery and stabilize it for future growth. It was recommended among others that more laws should be enacted to provide additional lending authority for certain Small and Medium Scale Enterprises (SMEs) so as to boost the post COVID-19 economy in the country; loans and advances should be given to agricultural enterprises to speed up more supply of food to the economy.
Tobun, Tomilola, ‘Medical Malpractice in Public Health Emergencies: A Review of Medical Response to COVID-19 in Nigeria’ (SSRN Scholarly Paper No ID 3608656, 23 May 2020) Abstract: The Article establishes that in a pandemic situation, there is a duty to prevent the transmission of disease & an established duty of care to all other patients. The upsurge in demand for health services in a pandemic situation should not excuse or justify the breach of this duty of care which can result in any harm or injury being done to a patient.In a pandemic situation, the rejection of patients by hospitals, the failure to pay special attention to patients even in isolation centres e.t.c can be adjudged as negligent actions for which medical practitioners & medical institutions can be liable. :
Uwadinma, Alex Iloba, Favour Onoriode Ebbah and Egondu Grace Ikeatu, ‘Adapting to Change: The Impact and Legal Challenge of Remote Work in Nigeria Post-COVID 19’ (2024) 4(1) Adeleke University Law Journal 26–40 Abstract: The global pandemic has revolutionized the work environment, compelling a shift towards remote work models. This phenomenon is particularly significant in Nigeria, where traditional employment practices are being re-evaluated in light of these changes. The primary aim of this study is to analyze the legal implications of remote work arrangements in Nigeria. It seeks to understand how current labour laws accommodate this new work dynamic and to identify gaps in legislation that may affect remote workers and employers. This study employs a qualitative approach, analyzing existing Nigerian labour laws and policies related to remote work. It includes a comprehensive review of legal documents, scholarly articles, and case studies to understand the current legal landscape. The findings reveal a complex interplay between traditional labour laws and the demands of remote work. While some existing laws provide a basic framework for remote employment, there are significant gaps in addressing specific challenges such as employee rights, data security, and work-life balance. The study concludes that while Nigeria has made strides in adapting to remote work, there is an urgent need for more comprehensive legislation that specifically addresses the nuances of remote employment. It is recommended that new policies be developed to protect remote workers’ rights, ensure data security, and promote a healthy work-life balance. Furthermore, ongoing legal reforms should be informed by the evolving nature of remote work.
Yusuf, Abubakar, ‘COVID-19 Pandemic Lockdown Discourse: A Review of Some Contending Human Rights Issues’ (SSRN Scholarly Paper No ID 3794654, 28 February 2021) Abstract: The paper examined the human rights issues associated with COVID-19 pandemic lockdown restriction in Nigeria. With the aid of secondary data obtained from official documents, reports and other literature on the subject matter, the paper found that there were reports of human rights violations at different levels which were encapsulated in three concentric circles namely right to life and duty to protect, right to health and access to healthcare and freedom to movement. The paper discussed the issues associated with these rights during the COVID-19 pandemic lockdown. It was found that there was little or no considerations for the necessary parameters of necessity and proportionality when national lockdown restrictions were made. This subsequently raised the call for review of the national emergency laws and setting up of monitoring committee during national emergencies. Other recommendations included taking necessary actions to guarantee freedom of expression during national emergencies and provision of stimulus packages and other palliatives to the most vulnerable in the society.
Rwanda
Bikesha, Denis and Allan T Moore, ‘Public Health, Technology and Social Context in Rwanda’s COVID-19 Response’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 324 Abstract: Rwanda has, at the time of writing, managed to suppress the spread of COVID-19 to levels lower than all the countries that surround it in Central and East Africa. This chapter examines some of the main reasons why. From the pre-emptive stages of pandemic preparation, the Rwandan government planned for the use of information technology to be central within its public health approach and followed through with implementation of a range of measures utilising such technology when the virus was detected within Rwanda’s borders. From the use of robots for diagnostic and data collection purposes, to the deployment of drones to communicate public health guidance to the population, the benefits in reducing contact and transmission have been clear. Further necessary clarification is provided related to the legal basis for executive use of powers and the balance between human rights and state obligations under Rwanda’s 2003 Constitution (as amended in 2015). Finally, the chapter analyses the historical-social context of Rwanda that contextualises the likelihood of Rwandan people adhering to restrictions placed upon their everyday lives. The chapter concludes that, while some aspects of Rwanda’s approach may be replicable elsewhere, other reasons for Rwanda’s success may be less transferable, being dependent on the social context developed after more than two decades of transitional justice and reconciliation-based activities in the country.
Cooney, Sean et al, ‘OSH and the COVID-19 Pandemic: A Legal Analysis’ (Northeastern University School of Law Research Paper No 434, 26 April 2023) Abstract: This study provides an analysis of how occupational safety and health (OSH) regulation responded to the circumstances of key workers during the COVID-19 pandemic. It explains the objectives of OSH regulation, including its main elements and how it has evolved over time. It draws from national country studies from Africa (Rwanda); Asia (China, Japan, Republic of Korea); Europe (Italy, Spain, United Kingdom); North America (United States) and South America (Brazil, Colombia) to explain how different jurisdictions address safety and health in their regulatory frameworks and how these frameworks operate in practice, including during the COVID-19 pandemic.
Faustin, Muhire, ‘A Critical Analysis of Legal Protection of Occupational Safety and Health of Workers during COVID-19 Outbreak in Rwanda’ (SSRN Scholarly Paper No 4193647, 18 August 2022) Abstract: Despite the introduction of occupational safety and health of workers at the work place in Rwanda within the context of constitution, law establishing the general statute governing public servants, law regulating labour in Rwanda, Ministerial Order n°02 of 17/05/2012 determining conditions for occupational health and safety, among others, there exist some limitations in the protection of occupational safety and health of workers at workplace especially during pandemics like COVID-19 in Rwanda .With the use of doctrinal and critical analysis methods, the study revealed there is no substantive legislative framework which materialize fully the protection of workers’ safety and health within a pandemic like COVID-19 in Rwanda. The study suggests that, Rwanda has to embrace and adopt effectively the WHO guidelines and ILO standards on Occupational Safety and Health of workers as both guidelines can offer an advanced guidance in regard to protection of Occupational Safety and Health of workers, during the period of the pandemic and other likely pandemics. The Rwandan legislator therefore, has to revise the existing related legal framework to reinforce the protection of workers at work places during the outbreak of pandemics such as COVID-19.
Senegal
Agbam, Komlavi, ‘Instant Paper for Senegal – Opinio Juris in Comparatio’ Table of contents I. Overall Framework: New code of civil and commercial obligations 1. The Externality 2. The unpredictability 3. The insurmountability II. Specific framework III. Some cases that can be invoked in Senegalese Law.
Seychelles
Katsenga, Nyasha Noreen, ‘Online Legal Education in Seychelles’ (SSRN Scholarly Paper No ID 4013414, 20 January 2022) Abstract: This report examines how Seychelles has moved to online legal education and where, if any, improvements need to be made. The legal profession is integrated, making no distinction between attorneys and advocates. However, the number of lawyers is worrying low standing at 0.5 lawyers per 1000 people. Within legal education, gaps present themselves where there is no Seychellois LLB degree, a Bar Vocational Course which has a low online presence, and CLE non-existent. Notwithstanding this, the move to online legal education in response to the COVID-19 pandemic has been considerably good at the university. Measures such as internet allowance were put in place during lockdown as well as after the same. Teaching online is widely practiced within the university even where there are no lockdown measures in place. Nevertheless, the cost of internet remains a challenge which threatens the sustainability of online legal education.
Nottage, Luke R and Makoto Ibusuki, ‘Comparing Online Legal Education World-Wide: An Overview Before and after the Pandemic’ in Luke R Nottage and Makoto Ibusuki (eds), Comparing Online Legal Education: Past, Present and Future (Intersentia, 2023) [draft chapter] Abstract: This draft General Report for the October 2022 IACL conference (and for introductory and concluding chapters in a related Intersentia series co-edited book) compares the global development of online legal education before and after the COVID-19 pandemic, particularly in universities but also through professional bodies. As significant background factors, it posits the nature of each jurisdiction’s legal system and profession, resourcing of universities, ICT infrastructure, and evolving pandemic impact. It then compares highlights and lowlights from 13 diverse jurisdictions: eight in the Asia-Pacific region and four elsewhere. The General Report concludes with a discussion of common trends and issues, as well as some intriguing divergences and contingencies, and an overall prognosis given the pros and cons revealed by the pandemic-induced shift towards more online legal education.
Nottage, Luke R and Makoto Ibusuki (eds), Comparing Online Legal Education (Intersentia, 2023)Link to book page on publisher website
Book summary: This pioneering work by leading comparative lawyers examines developments in online legal education, particularly in universities but also in professional associations, before and especially after the COVID-19 pandemic. The book posits and largely confirms that transformations are linked to the extent and scope of respective legal professions (often, but not always, correlating to common versus civil law traditions), funding and other aspects of university-level education, and information and communications technology infrastructure in each jurisdiction. It charts the dramatic shift to online legal education in almost all jurisdictions even with different levels of COVID-19 infections and deaths, or mobility restrictions imposed by law and/or social norms. It also details how law teachers and students adapted to the challenges and opportunities of new technologies and practices, sometimes benefitting from serendipitous earlier events supporting online legal education, and a considerable ‘reversion to the mean’ as the pandemic has abated. The special reports incorporate extensive empirical data, including surveys on online legal education experiences. They cover 13 jurisdictions across the Asia-Pacific region (Australia, Canada, Brunei, Malaysia, Singapore, Hong Kong, Macao, Japan and Pakistan), Europe and beyond (Croatia, Cyprus, Italy and Seychelles), ranging from micro-states to very large economies, at various stages of economic development and from different legal traditions. Comparing Online Legal Education provides rich resources and lessons for legal academics and professionals, as well as those involved in education policy.
Sierra Leone
Abdulai, Emmanuel Saffa, ‘Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 3–18 Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.
Somalia
Gilder, Alexander et al, ‘Peer Learning and Student Ownership in An International Environment: A Student-Created Website on Human Rights and Peacebuilding’ (2023) 4(1) European Journal of Legal Education (forthcoming) Abstract: In light of COVID-19, activities under the remit of the Legal Advice Centre at Royal Holloway needed to adapt. Technology and the normalisation of online collaboration presented an opportunity for international cooperation between students at universities around the globe. To capitalise on the changing dynamics, Royal Holloway established a Memorandum of Understanding with the Institute for Peace and Conflict Studies in Somaliland with the aim of pursuing student-led projects, as well as other research related collaboration. In this article we recount the formulation of a student-led, inclusive, international project that saw students in the UK and Somaliland work together on a website that freely disseminates information on human rights and peacebuilding for stakeholders in Somaliland and the Horn of Africa, with additional relevance for UK actors working in Somaliland. The project utilised approaches of peer learning, student ownership, enquiry-based learning, international collaboration, and social responsibility to build an activity and environment that promoted deeper learning, critical thinking, and social change.
South Africa
Abioye, Funmi, ‘COVID-19, Women’s Rights, and the Rule of Law in Africa: Muddying the Waters’ (2022) Southern African Public Law (advance article, published online 29 June 2022) Abstract: The COVID-19 pandemic has disrupted the global space. African countries and societies have been greatly impacted, economies have been brought to the brink, with already established legal mechanisms designed to ensure the functioning of societies, being tested to the limit. In response, the concepts of ‘national lockdown,’ ‘social distancing,’ ‘travel restrictions’ have become too familiar as governments move to try and protect their populations. These measures have had deleterious effects on law, the rule of law and the protection of rights guaranteed by constitutions and regional instruments. In virtually every aspect of life, human rights have suffered the direct and indirect consequences of governments’ responses to the pandemic. This is particularly more so in African states, and among the vulnerable members of the African population. It is said that women in Africa have borne the brunt of the impact of the pandemic during the measures implemented by States in attempts to curb and control the pandemic. This article examines the impact of these responses on the rights of African women by drawing examples from South Africa. Constitutionalism and the rule of law are affected as rights are limited and at times derogated in an attempt to contain and control the pandemic. These derogations have had the unintended consequence of limiting the guaranteed rights of African women under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) and other international, regional and national legislative provisions. The necessary factors that States need to consider before imposing pandemic curtailment measures in future, are discussed and recommended
Albertyn, Catherine, ‘The Role of Equality Law in Expanding Access to Social Goods and Services in South Africa: Lessons after the Pandemic’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 353 Abstract: In the context of South Africa’s deep structural inequalities, exacerbated by the Covid-19 pandemic, this chapter focuses on the role of the constitutional equality value and right (unfair discrimination and positive measures), and the Promotion of Equality and Prevention of Unfair Discrimination Act in achieving a more egalitarian and substantive provision of social goods and services. It starts by arguing that equality has played a powerful role in securing substantive outcomes in socio-economic rights cases and has multifaceted potential for securing a more egalitarian distribution of social goods and services. It then maps the jurisprudential contours of the constitutional value of equality, the section 9 right and/or the Equality Act in distributing social goods and services in four illustrative categories: (i) expanding the scope of existing social goods by adding new groups (who qualifies); (ii) challenging the distribution of resources underpinning goods and services (shifting resources from more privileged towards disadvantaged groups); (iii) preventing the regression of goods and services; and (iv) the judicial development of a positive equality duty (under section 9(2)) to implement policies and laws concerning socio-economic rights with due regard to substantive equality. It concludes by discussing what this reveals about the role of equality law and courts, and the conceptual and institutional spaces, limits, and opportunities in equality law to address structural and exponential economic inequalities and poverty in South Africa.
Aren, Marie-Louise F, ‘Adopting Proactive Debt Management Policy Strategies to Forestall a Debt Crisis in South Africa’ in Daniel D Bradlow and Magalie L Masamba (eds), COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) 211-227 [OPEN ACCESS BOOK] Introduction: South Africa could be heading towards a sovereign debt crisis of huge magnitude if certain decisive actions are not taken to manage rising debt levels. As a result of the national lockdown restrictions, aimed at containing the spread of the COVID-19 pandemic, gross domestic product (GDP) growth per capita2 moved from 0,2 per cent in 2019 to – 8,3 per cent in 2020. However, it has increased to 1,6 per cent in 2021, owing to the ease of lockdown restrictions. Real GDP per capita (per cent change from previous period) is projected at 0,4 per cent in 2022.3 In addition, the government’s budget deficit and maturing loans increased from ZAR432,7 billion in 2019/2020 to ZAR670,3 billion in 2020/2021. Net government debt figures4 expected to increase from ZAR3,66 trillion, about 74, 3 per cent of GDP, in 2020/2021 to ZAR5,09 trillion, about 84,9 per cent of GDP in 2023/2024.5 This does not present a bright economic outlook.
Ballano, Vivencio O, ‘Analyzing the Morality of Owning and Suspending Patent Rights for COVID-19 Vaccines in the Light of Catholic Social Teaching’ [2021] The Linacre Quarterly (advance article, published online 8 December 2021) Abstract: Using the Roman Catholic Church’s set of moral principles on social concerns called Catholic social teaching (CST) and utilizing some secondary data and scientific research literature, this article examines the morality of India and South Africa’s request to the World Trade Organization (WTO) to temporarily suspend the property rights and patents of top pharmaceutical companies to their vaccines to allow low-income countries to locally manufacture them to save the lives of the poor during this COVID-19 pandemic. Applying the theological method of ‘See-Judge-and-Act,’ this article argues that the suspension of patents for COVID vaccines is morally justifiable in the light of CST’s principles on the universal destination of earth’s goods, the common good, and preferential option for the poor. The top pharmaceutical companies cannot claim absolute ownership to their vaccines as they do not totally own and fund the entire development and production process. Furthermore, the right to private ownership and patents has a social dimension and must serve the common good and welfare of the poor, especially in times of global emergency such as the COVID-19 pandemic. Patent holders have a moral obligation to promote the common good and save the lives of the poor which must prevail over their capitalist quest for profit. This article recommends that Catholics and Christians must join this crusade for the suspension of patents as part of their spirituality of social transformation., Summary: Applying the Roman Catholic Church’s set of moral principles on social concerns called CST and utilizing some secondary data and scientific research literature, this article examines the morality of India and South Africa’s request to the World Trade Organization to temporarily suspend the property rights and patents of top pharmaceutical companies to their vaccines to allow low-income countries to locally manufacture them to save the lives of the poor during the current pandemic. Applying the theological method of ‘See-Judge-and-Act,’ this article argues that the suspension of patents for COVID vaccines is morally justifiable in the light of CST’s principles on the universal destination of earth goods, the common good, and preferential option for the poor. It recommends that Catholics and Christians must join this crusade for the suspension of patents as part of their spirituality of social transformation., Short Summary: This article argues that patents of the top pharmaceutical companies to their COVID-19 vaccines must be suspended as requested by India and South Africa in the WTO in the light of CST’s moral principles on the universal destination of earth’s goods, the common good, and preferential option for the poor. :
Berg, Angela van der and Marius Pieterse, ‘Governing Urban Crisis Through Adaptive Urban Law: Lessons from City Responses to COVID-19 in the Netherlands and South Africa’ (2024) 20(1) Utrecht Law Review 1–18 Abstract: The global Covid-19 pandemic exposed the fragility of urban systems and underscored the need to recalibrate regulatory and institutional frameworks for an anticipated crisis-prone future. This article explores the notion of ‘adaptive law and governance’; as a lens through which city authorities can test and modify legal and governance responses to future urban crises. It compares the experiences of managing Covid-19 in the two biggest cities in the Netherlands (Amsterdam and Rotterdam) and in South Africa (Johannesburg and Cape Town). This comparison, between two sets of urban municipal governments functioning under different constitutional systems and in different socio-economic contexts, provides insights pertaining to how adaptive urban governance during the pandemic was constrained or enabled by the interaction between the regulatory and institutional frameworks for and political realities of urban autonomy and intergovernmental relations. The article demonstrates that cities that govern within a flexible and decentralised legal and governance system are better positioned to develop and implement responsive measures to address crises or uncertainty. To enhance resilience, legal systems should promote transparent, risk-responsive, and reflective local governance tools to enable agile, context- specific and decisive crisis responses that can be employed as a matter of course rather than exception.
‘Beware of Coronavirus Scams’ (2020) 113(5) Servamus Community-based Safety and Security Magazine 25–25 Abstract: SABRIC, the South African Banking Risk Information Centre, warns bank clients that cybercriminals are exploiting the spread of COVID-19 for their own gain using the ‘Coronamania’ panic to spread coronavirus scams. Coronavirus scams exploit peoples concerns for their health and safety and pressure them into being tricked using social engineering. Social engineering is manipulative and exploits human vulnerability because criminals know that the weakest link in the information security chain is the human being. :
Bonakele, Tembinkosi, ‘The South African Competition Agency Response to COVID19’ (2022) 10(2) Journal of Antitrust Enforcement 241–247 Abstract: South Africa, as with the rest of the world, faced an unexpected crisis on many levels with the onslaught of the Covid-19 virus. In addition to the human casualties, South Africa experienced a sharp rise in prices for essential goods, such as masks and sanitisers, threatening an economic crisis for South Africa’s poor and unemployed. The South African Competition Commission chose to intervene using the regulatory tools available in competition law to tackle excessive pricing. This resulted in the investigation and prosecution of several companies for charging excessive prices for a range of goods and services such as masks, sanitisers and Covid-19 testing services.
Booley, Asharaf, ‘COVID-19 versus Contractual Obligations: Case in Point South Africa?’ (2020) 20(6) Without Prejudice 42–43 Abstract: COVID-19 has impacted businesses and communities, leaving in its wake infections, death, shortages of essential services, unpreparedness and mental and physical uncertainty. One question is, what is the impact of COVID-19 lockdown on pre-existing contractual obligations?
Booth, Ross, ‘Academics and Pandemics: A Student’s Perspective during the Lockdown’ (2020) 20(5) Without Prejudice 11–12 Abstract: For many people (including myself), the 1st of January 2020 felt like a day that couldn’t come sooner. 2019 had been an especially difficult study year, with the leap from first to second year comparable to an Olympic long jump. However, what I didn’t anticipate is that 2020 would spiral into disaster, almost from the get-go.
Burnett, Martha, ‘When Did Saving Lives Become a Decision on Who Gets to Live?’ (2020) 20(5) Without Prejudice 7–8 Abstract: ‘I had the worst day of my whole Nursing career today. We were literally discussing who gets to live and who dies – there are not enough ventilators in our hospital for all who need one. My heart is broken. How did we get here?’. :
Cassim, Rehana, ‘The Escalation of Corporate Corruption During The Covid-19 Pandemic: Is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?’ (2022) 33(3) Stellenbosch Law Review 349–375 Abstract: During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.
Coetzer, Neil, ‘Are Employers Obliged to Save Jobs?’ (2020) 20(4) Without Prejudice 8–10 Abstract: At the time of writing, the extended period of lockdown has just commenced. The COVID-19 pandemic has already had a drastic impact on the operations of businesses and, in most cases, will lead to varying degrees of financial pain for both employers and employees. We are also told that, notwithstanding the extended lockdown of 35 days, the peak of the pandemic will only be reached by September 2020. Combating the virus will clearly require a change to the ‘business as usual’ approach, reimagining, for the foreseeable future, the way we work and go about our daily lives. :
Coglianese, Cary and Neysun A Mahboubi, ‘Administrative Law in a Time of Crisis: Comparing National Responses to COVID-19’ (2021) 73(1) Administrative Law Review 1 Abstract: Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as well as the World Health Organization. Although the pandemic and its consequences remain ongoing problems, this issue seeks to elucidate the regulatory challenges that countries have faced in common, and to compare approaches and distill lessons that might be transferrable across jurisdictions. From the essays in this special issue emerge at least four key lessons. First, it is clear that a global pandemic demands effective national and local governance. Second, regulations must be adaptable and responsive in the face of fast-moving public health threats. Third, emergency executive powers must be limited and subject to oversight and sunsetting. Finally, as much as administrative law can affect countries’ ability to craft effective responses to public health emergencies, responsible public leadership undoubtedly matters most of all. These four lessons can help guide efforts by lawmakers and policy advisors to prepare more nimble and effective regulatory approaches to respond to viral outbreaks and other public health threats. Even when the current global pandemic eventually recedes, the Administrative Law Review’s special issue on national responses to the COVID-19 crisis can provide a basis for reflection and renewed momentum toward strengthening international public health institutions and regulatory cooperation around the world. :
Darji, Raksha, ‘The Failing Firm Doctrine During COVID-19: A Perspective from South Africa’ [2020] _Competition Policy International_ Abstract: The COVID-19 pandemic is likely to result in a large number of firms facing financial distress. This will likely lead to increased merger notifications appealing to the failing firm doctrine (‘FFD’). The Commission will be faced with the difficult task of balancing future weakened competition in an already highly concentrated economy with possible firm exit in a country with an already high unemployment rate of 30.1 percent.
Du Preez, Hanneke and Keamogetswe Molebalwa, ‘Lessons from History Predicting a Possible Tax Revolt in South Africa’ (2021) 54(1) De Jure 35–53 Abstract: South Africa is experiencing harsh economic circumstances, which negatively affects the economic environment of its citizens. Literature shows that historical tax resistance or tax revolts were mostly sparked by citizens burdened by their economic living conditions. South Africans’ disgruntlement has been voiced in many ways, from resistance to E-tolls to increasing numbers of violent service protests. This article explores the economic factors present in three historical tax revolts to assess the possibility of tax resistance and/or a tax revolt in South Africa. The three historical tax revolts were identified through a purposive selection process. A systematic review was then followed to identify the economic factors present in each historical tax revolt. Finally, the economic factors deduced from the historical tax revolts were applied to the current economic situation in South Africa. The findings are that all the economic factors identified from history are currently present in South Africa, indicating the imminent possibility of a tax revolt. Whilst previous research has focused mainly on explaining past events, this article attempts to anticipate and prevent a future event. The contribution of this article is thus to underline possible economic factors that may lead to tax resistance and/or a tax revolt in South Africa. The aftermath of COVID-19 may further worsen the current economic situation, especially with the exacerbation of the already high unemployment rate that may just be a tipping point for a possible tax revolt. :
Dube, Felix, ‘The Rule of Law in a State of Disaster: Evaluating Standards for the Promulgation, Administration and Enforcement of Emergency Regulations in South Africa’ (2023) 15(1) Hague Journal on the Rule of Law 143–159 Abstract: This paper applies the rule of law test to emergency regulations adopted to combat a national disaster in South Africa. A declaration of a national state of disaster, such as a pandemic, triggers emergency powers which enable the executive to mitigate the disaster, assist and protect the public, provide relief, and protect property. However, emergency powers provide a pretext for the executive to limit constitutional rights and to curtail the enjoyment of freedoms. These unprecedented powers also pose a risk of arbitrary exercise of public power, which can only be prevented if the promulgation, administration and enforcement of emergency regulations conform to the principles of legality, rationality and proportionality. These principles are understood as tenets of the rule of law in South Africa. They require a strong commitment to respect, protect and promote human rights at a time when they are most vulnerable to violation by the State. Given the role of the judiciary in the maintenance of the rule of law, and the litigation against the emergency regulations adopted in response to the outbreak of the COVID-19 pandemic, this paper also discusses the ensuing case law to illustrate the practical application of the rule of law test to a national disaster.
Dube, Felix and Anél du Plessis, ‘Unlawful Occupiers, Eviction and the National State of Disaster: Considering South Africa’s Emergency Legislation and Jurisprudence During COVID-19’ (2021) 65(S2) Journal of African Law 333–346 Abstract: This article analyses how emergency regulations protected persons living in urban poverty, particularly unlawful occupiers, from eviction during the COVID-19 pandemic in South Africa. It is set against the socio-economic and environmental effects of unlawful occupiers being forced onto the streets through evictions. It examines the judicial interpretation and application of the COVID-19 regulations on the prohibition of the eviction of unlawful occupiers, together with remedies for compensation for demolished dwellings. Ultimately, the article shows that the regulatory and judicial responses to the pandemic were pro-poor and sought to protect human dignity, the right to life, and the right to an environment that is not detrimental to human health and well-being. The responses safeguarded access to housing at a time when many vulnerable people could have been rendered homeless by eviction and the demolition of their dwellings. :
Durojaye, Ebenezer and Robert Doya Nanima, ‘From Muhammed and Others to De Beer and Others: Striking the Balance between Public Health Measures and Human Rights during Covid-19 Era in South Africa’ (2021) 47(1) Commonwealth Law Bulletin 175–194 Abstract: This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed. :
First, Harry, ‘Robbin’ Hood’ (SSRN Scholarly Paper No ID 3724628, 22 September 2020) Abstract: Is it an antitrust offense to sell face masks at a high price in the midst of a pandemic? In this essay I address this question by examining two recent decisions in South Africa that found the high prices for face masks charged by two retailers were excessive under South Africa competition law, even though neither firm was shown to be dominant by traditional methods. In addition to discussing the two cases, I argue that South Africa’s effort to use competition law to prevent this kind of price increase has important lessons for antitrust enforcement elsewhere, including the United States. Specifically, the two cases remind us of the importance of price in antitrust analysis; the need to pay attention to justice in antitrust analysis; our over-willingness to rely on market corrections rather than acknowledging market failures; and our need to change our culture of antitrust enforcement. It may be that the ‘supreme evil’ of antitrust is not collusion, but a failure to pay attention to how antitrust can advance justice. :
Geldenhuys, Kotie, ‘Impact of COVID-19 on the Poor and Homeless’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 26–30 Abstract: COVID-19 affects almost every facet of people’s lives and nobody has been left untouched. The measures, such as lockdowns, which governments have been taking to contain COVID- 19 affect households in many ways, including job security, the loss of income, increased prices, rationing of food and other basic goods. There have also been disruptions to health care services and the educational system. Despite many of us feeling sorry for ourselves due to the restrictions imposed in terms of disaster regulations, the reality is that the poor and the homeless have probably suffered the most under these regulations. :
Geldenhuys, Kotie, ‘Sex Workers : The Forgotten Faces during the COVID-19 Lockdown’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 32–35 Abstract: For many South Africans going into lockdown simply meant staying at home with family, while many of those who had to work did so remotely or virtually. But for sex workers it was a much different ball game. Due to the fact that their profession is not recognised as legal ‘work’ in South Africa, sex workers remain the most marginalised of all workers in the country. :
Geldenhuys, Kotie, ‘Violence against Civilians during the COVID-19 Lockdown’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 20–25 Abstract: The COVID-19 pandemic has brought the world to a state of lockdown and at the time of going to print, more than 2.1 million people have already succumbed to this virus. As humanity struggles against this deadly threat, they sadly also have to deal with some members of the security forces such as the police and soldiers who are acting violently and inhumanely against civilians while enforcing lockdown regulations. :
Geldenhuys, Kotie, ‘When COVID-19 Knocks on Law Enforcers’ Doors’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 14–17 Abstract: During their daily duties police officials are exposed to a unique set of challenges. But during the past couple of months, law enforcement agencies faced even more challenges due to the COVID-19 pandemic. During pandemics, such as COVID-19, law enforcement agencies are responsible for working with government and public health officials to contain the spread, serve the local community, maintain public order and conduct their normal policing duties. :
Germanò, Marco André et al, ‘Digital Surveillance Trends and Chinese Influence in Light of the COVID-19 Pandemic’ (2023) Asian Journal of Comparative Law (advance article, published online 23 January 2023) Abstract: Countries across the world expanded digital surveillance strategies in response to the COVID-19 pandemic. As the pandemic occurred contemporaneously with a global trend toward greater digital repression, commentators advanced the notion that China would use the health crisis to promote a technology-enabled form of authoritarian governance abroad. This article surveys the evidence for these claims by first examining the literature on the increase of digital surveillance associated with China and then presenting three case studies from developing countries with varying responses to the COVID-19 pandemic. The selected countries – Brazil, South Africa and Vietnam – used surveillance technology as part of their pandemic response and have either been influenced by Chinese approaches or adopted Chinese technology in recent years. Examining these case studies allows us to better understand claims regarding China’s role in the general spread of digital surveillance and the interplay between Chinese state objectives and local political environments. Crucially, we illustrate how China’s engagement in digital governance abroad is heavily contingent on domestic environments. Against a backdrop of China’s growing influence in global digital governance, the effects observed in these case studies of Chinese surveillance models and technology proliferating through pandemic management are diffuse and contextualised by local factors.
Gesley, Jenny, ‘Regulating Electronic Means to Fight the Spread of COVID-19’ (Law Library of Congress Legal Report, June 2020) Abstract: Note: This page includes a comparative summary, and links to the full report and a COVID-19 Contact Tracing Apps world map. Extract from Introduction: This report surveys the regulation of electronic means to fight the spread of COVID-19 in 23 jurisdictions around the globe: Argentina, Australia, Brazil, China, England, France, Iceland, India, Iran, Israel, Italy, Japan, Mexico, Norway, Portugal, the Russian Federation, South Africa, South Korea, Spain, Taiwan, Turkey, the United Arab Emirates, and the European Union (EU). :
Goitom, Hanibal, ‘South Africa: Government Policies to Fight COVID-19 Pandemic’ in Arianna Vedaschi (ed), Governmental Policies to Fight Pandemic: The Boundaries of Legitimate Limitations on Fundamental Freedoms (Brill, 2024) 635–657
Goldberg, Jonathan and Grant Wilkinson, ‘Case Law Emanating from COVID-19 in the Employment Space: Employment Law - COVID-19’ (2020) 20(7) Without Prejudice 17–18 Abstract: Since the beginning of the COVID-19 lockdown, there have been far more Gazettes issued than during any other period in our democratic history. One of the pieces of legislation that has arrested the attention of all South Africans is the Disaster Management Act (57 of 2002) owing to the many revisions that have been issued to the Act’s guidelines. Government has faced a total of 116 legal challenges against various aspects of the lockdown regulations. Some of these have been settled out of court while others are still pending... At the time of writing this article, one such case, which deals with the interpretation and application of the Disaster Management Regulations, is AfriForum v The Minister of Cooperative Governance and Traditional Affairs (22358/2020) [2020] ZAGPPHC. A number of interesting principles flow from this matter, which are relevant to employers in the post COVID-19 reality. :
Goldberg, Jonathan and Grant Wilkinson, ‘Post COVID-19 Labour Law Considerations’ (2020) 20(5) Without Prejudice 26–27 Abstract: The recent lockdown, which has been extended in several countries around the world, has posed a number of challenges from a legal perspective. This has forced us to consider the impact on the employer-employee relationship. As organisations are forced to close down temporarily, barring certain exceptions for essential services, it is necessary to consider the variety of options available in order to keep organisations afloat. :
Goldberg, Jonathan and Grant Wilkinson, ‘Retrenchments in the Time of COVID-19’ (2020) 20(6) Without Prejudice 58–59 Abstract: In the second week of May, it was reported that the Commission for Conciliation, Mediation and Arbitration (CCMA) has seen an increase in both large-scale and individual retrenchments since the start of the pandemic. Unfortunately, this is creating a massive burden for an already-stretched system. As the courts will not generally second-guess a business decision made by a company, they will assess the fairness of a decision to retrench owing to operational reasons and not the correctness thereof. :
Hansungule, Zita M et al, ‘Reinforcing Inequality: First 100 Days of South African COVID-19 Policy’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 295–339 Abstract: The aim of this chapter is to examine the effects of the pandemic on socio-economic justice in South Africa, using the consequences of national policy choices prior to, and during, the first 100 days of the outbreak of COVID-19. It traverses issues pertaining to democratic governance and social activism; surveillance and security; economic policy; the labour market; health infrastructure; and the education sector. Based on an analysis of the inequality within the nation entrenched by a neoliberal period, commencing post-independence, it is proposed that the State must depart from a neo-liberal stance and adopt urgent pro-poor and human rights based resource allocation measures to the greatest extent possible to promote, respect, protect and fulfil fundamental human rights. Importantly, this involves reprioritising and streamlining budget considerations across the indigent sectors resulting from the pandemic. Moreover, we propose potential post-pandemic policies within these areas which may assist in guiding South Africa out of its precarious economic position.
Hardy, Jodi, ‘COVID-19 Tracing and Personal Privacy’ (2020) 20(4) Without Prejudice 52–53 Abstract: The National Department of Health has instituted a COVID-19 tracing database to help trace people who might have come into contact with a Person of Interest – one who has (or might have) contracted COVID-19. The move will affect all providers of electronic communication services. :
Hill, Maud, ‘South African M&A : The COVID-19 Legacy’ (2020) 20(6) Without Prejudice 12–13 Abstract: The impact of COVID-19 on a social and human level has been significant. Connected to this is the added pressure on an already troubled South African economy. A knock-on effect is noted in the downswing in M&A activity in the region, with corporates facing tougher strategic and financial decisions. While it is anticipated that M&A activity will have an upswing in the medium to long term (connected potentially to an increased number of distressed companies on the market), it seems likely that there will be a lasting effect on M&A. The purpose of this article is to briefly consider certain of these potential lasting effects. :
Irvine, Heather, ‘Minister of Trade Industry and Competition Responds Swiftly to COVID-19’ (2020) 20(3) Without Prejudice 6–7 Abstract: Unprecedented regulations have been passed by Minister Patel in order to exempt certain categories of agreements and practices in the banking, healthcare and retail sector in order to enable competitors in key South African industries to respond to the COVID-19 crisis. Regulations to deter unfair and excessive pricing of critical consumer goods and services have also been put into place. :
Jacklin, -Levin Vanessa and Robyn Smerdon, ‘COVID-19 and the Development of Law in South Africa’ (2021) 21(4) Without Prejudice 62–62 Abstract: MANDATORY VACCINATION POLICIES ALLOWED The Department of Employment and Labour (DEL) recently announced a new directive in terms of the Disaster Management Act (known as the updated Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces). :
Jacobs, Johann, ‘A COVID-19 Health Check for the Wills Act: Law of Succession’ (2020) 20(6) Without Prejudice 38–40 Abstract: Every aspect of life has been affected by COVID-19. Estate planning is no exception, especially the execution of wills. The stark reminder of mortality, coupled with the extra free time at most individuals’ disposal during lockdowns has resulted in more enquiries directed to fiduciary practitioners. Would-be testators and practitioners were, however, confronted with major practical obstacles in giving effect to these instructions. :
Kamga, Serges Djoyou, ‘COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education’ (2021) 65(S2) Journal of African Law 347–360 Abstract: This article explores the extent to which the right to basic education of learners with disabilities in South Africa was guaranteed during the COVID-19 pandemic. It uses the Centre for Child Law v Minister of Basic Education (Centre for Child Law) as the main canvas for discussion. It argues that, notwithstanding its normative compliance with the international regime of the right to an inclusive basic education, the government has failed learners with disabilities during COVID-19. An examination of Centre for Child Law reveals that, not only did the government’s directions for the phased return to school exclude learners with disabilities, they also required the closure of special schools where compliance with social distancing rules was impossible. This violated the right to inclusive education and substantive equality of learners with disabilities and highlighted the need to advance these rights through reasonable accommodation initiatives. :
Keanly, Kendall and Belinda Scriba, ‘Decisions by Companies during COVID-19 Lockdown: Oppressive or Prejudicial?’ (2020) 20(6) Without Prejudice 6–7 Abstract: In Alert Level 3 lockdown there remain stringent parameters on how companies, even though now permitted to trade, may conduct their business operations. :
Kempen, Annalise, ‘Fighting Myths as Hard as We Fight the Spread of COVID -19’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 70–71 Abstract: By now we have become used to reading about the conspiracy theories that are accompanying the COVID-19 pandemic. When we first reported about the disinformation being spread about COVID-19 in Servamus: June 2020, we tackled various issues including so-called cures for the virus and the claim that 5G is responsible for the rapid spread of the virus. Ironically, the 5G claim is still going around like wildfire. But conspirators will always find something new to create doubt and since the first vaccines against COVID-19 have already been given to millions around the world, this is one of the latest COVID-19 topics about which fake news is spread. :
Kouletakis, Jade, Ayoyemi Lawal-Arowolo and Nkem Itanyi, ‘Copyright Law Protection of Films in Nigeria (Nollywood) and South Africa (Sollywood): Pre and Post-Covid-19 Pandemic’ (2023) 26(3) The Journal of World Intellectual Property 436–457 Abstract: The Covid-19 pandemic inflicted socioeconomic harm on an unprecedented scale. Across the world and to varying degrees, cinemas were closed, festivals were cancelled or postponed, and film releases were moved to future dates or delayed indefinitely. In 2020 the entire global theatrical and home/mobile entertainment market totalled $80.8 billion, the lowest figure since 2016 and a decline of 18% from 2019. Theatrical entertainment accounted for only 15% of the total global entertainment revenue, compared to 43% in 2019. While some has been written about the effects of Covid-19 on both international and local film industries, this article seeks to provide an African perspective focusing on the realities in Nigeria and South Africa, respectively. This article examines the importance of filmmaking industries in Nigeria and South Africa as well as the difficulties faced during the Covid-19 pandemic. Copyright laws in both terrains are critically reviewed based on the capacity of these laws to protect the interests of film industries pre and post-Covid-19.
Kriegler, Anine, Kelley Moult and Elrena van der Spuy, ‘Policing South Africa’s Lockdown: Making Sense of Ambiguity Amidst Certainty?’ [2021] (Special Conference Edition 5) European Law Enforcement Research Bulletin 239–249 Abstract: Despite the progressive vision of South Africa’s policy elites after the end of Apartheid, the South African Police Service (SAPS) faces such severe challenges of efficiency, accountability, and legitimacy that the institution appears under chronic siege. We sought to document the view of insiders on the SAPS’s preparedness and effectiveness at fulfilling its expanded mandate in response to Covid-19. As part of a larger research project, we conducted 27 interviews with police officers and representatives of other government departments across three provinces. These revealed two narratives. The first – and surprisingly dominant – is one of strong coordinating structures, capable leadership and effective command and control under exceptionally difficult circumstances. The second, however, is of an organisation stretched beyond breaking point and placing its members under impossible strains. We conclude that the two narratives are complementary and that their co-existence reflects the opposing pressures faced by the police in this period: the consolidating logic of state securitisation under conditions of crisis and the underlying fragmenting logic of dysfunctional, kleptocratic governance.
Kunguma, Olivia, Alice Ncube and Mosekama O Mokhele, ‘COVID-19 Disaster Response: South African Disaster Managers’ Faith in Mandating Legislation Tested?’ (2021) 13(1) Jàmbá: Journal of Disaster Risk Studies 10 Abstract: For the first time in the history of the Disaster Management Act, 57 of 2002, South Africa declared COVID-19 an epidemiological disaster. Section 3 and 27(1) of this Act activated the responsible Minister in consultation with other Ministers to issue regulations in response to the disaster. The declaration exposed the already criticised Act to scrutiny by the public. Therefore, this study investigated the Metropolitan Disaster Management Centres that coordinate local events and support the provincial and national disaster management centres, their perceptions concerning the disaster management legislation that mandates them. The study recognised a gap in this regard and saw it imperative to give the disaster managers a voice and a platform to express their opinion concerning the heavily criticised legislation. A model of the policy implementation process guided the study investigation. This model argues that implementation of policies tends to generate tensions, which result in a disruption of the policy formulators’ expectations. The research uses some of the model’s variables to measure the perceptions of disaster managers. Using an interview guide, the researchers conducted virtual interviews with the disaster managers. Scholarly and media articles review concerning the Act formed part of the data collection. The study finds that the disaster managers perceive the disaster management legislation as a very useful guide, an excellent piece of legislation and trust it regardless of the criticism it received. The gaps the critics identified in the legislation became evident and had negative effects on the COVID-19 disaster response. :
Labuschaigne, Melodie and Ciara Staunton, ‘The Rationality of South Africa’s State of Disaster During COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 347 Abstract: As a deeply unequal society with a poorly-resourced public health system and a significant tuberculosis and HIV infection burden, the South African government’s response to the COVID-19 pandemic has been the focus of close scrutiny. Opting for a state of national disaster instead of a state of emergency, the government promulgated a series of restrictions linked to a five-tiered risk adjusted strategy aimed at limiting the spread of the virus. The rationality of the government’s approach of opting for ministerial expert advisory committees and limiting Parliament’s oversight role in managing the disaster were contested in a series of legal challenges. This demonstrated the need for clear, justifiable and reasonable decisions, as well as the vital role of courts in protecting against potentially arbitrary decisions and providing for accountability mechanisms. The government’s negative response to experts’ criticism of its handling of the pandemic fails to recognise the importance of public debate in a functioning democracy and particularly during a public health crisis. With courts remaining the only check on decisions being made, it has become clear that Parliament should play a role in decision-making during this and future pandemics.
Levenstein, Eric, Roxanne Webster and Malachizodok Mpolokeng, ‘Business Rescue When Liquidation Proceedings Have Been “Initiated”’ (2020) 20(6) Without Prejudice 8–9 Abstract: The COVID-19 pandemic has had an unprecedented impact on the South African economy. Although necessary, the measures that have been employed to deal with the novel coronavirus, which include a nationwide lockdown, have resulted in several companies and businesses feeling the pinch. Despite government’s efforts to ameliorate these challenging conditions through various social relief and economic support packages, South African companies and businesses remain under enormous pressure, with many facing the harsh reality of financial distress. It comes as no surprise, therefore, that companies are increasingly turning to business rescue. :
Liebenberg, Sandra, ‘Austerity in the Midst of a Pandemic: Pursuing Accountability through the Socio-Economic Rights Doctrine of Non-Retrogression’ [2021] South African Journal on Human Rights (advance article, published online 6 September 2021) Abstract: This article examines the potential of the socio-economic rights doctrine of non-retrogression to hold the state accountable for policies of fiscal consolidation (‘austerity measures’) in South Africa. These policies threaten to erode many programmes and institutions critical to the delivery of the socio-economic rights recognised in the Constitution. The article provides a contextual analysis of fiscal consolidation policies in South Africa both in the lead up to and during the Covid-19 pandemic. It examines the nature of the doctrine of non-retrogression in international human rights law, and considers how the doctrine could be translated into South Africa’s existing jurisprudential framework on socio-economic rights. It concludes by considering how the procedural and participatory dimensions of the non-retrogression doctrine can play an important role in alleviating the institutional tensions involved in the judicial review of retrogressive measures. Ultimately, the article seeks to demonstrate that the doctrine of non-retrogression provides a framework and set of principles that can advance greater accountability for rights-eroding budgetary decisions. :
Lim, Woojin, ‘Assessing the Implications of Digital Contact Tracing for COVID-19 for Human Rights and the Rule of Law in South Africa’ (2020) 20(2) African Human Rights Law Journal 540–557 Abstract: The article argues that the establishment of centralised and aggregated databases and applications enabling mass digital surveillance, despite their public health merits in the containment of the COVID-19 pandemic, is likely to lead to the erosion of South Africa’s constitutional human rights, including rights to equality, privacy, human dignity, as well as freedom of speech, association and movement, and security of the person. While derogation clauses have been invoked, thereby limiting International Covenant on Civil and Political Rights clauses and enabling the mass collection of location data only for contact tracing purposes under the Disaster Management Act, a sustained breach of these rights may pose an impending threat to the human rights framework in South Africa. Any proposed digital contact tracing technologies in their design, development and adoption must pass the firm legal muster and adhere to human rights prescripts relating to user-centric transparency and confidentiality, personal information, data privacy and protection that have recently been enacted through the latest development on Protection of Personal Information Act. :
Litshani, Pfariso Victoria, ‘The Flattening of the COVID-19 Pandemic Curve and the Legal Paradox of Socio-Economic Rights in South Africa’ (LLM Thesis, University of Venda, 2023) Abstract: Major public health and socio-economic issues have been brought on by COVID-19, an infectious respiratory virus that causes symptoms similar to those of pneumonia. This study seeks to interrogate the implications of the legal approaches taken to address COVID-19 pandemic issues on the socio-economic rights in South Africa. To better understand the laws governing COVID-19 regulations and socio-economic rights and to provide an argument for their more effective application, the study used a doctrinal legal research methodology. Evidence that has been examined and interpreted in regard to socio-economic rights demonstrates that nations are obligated to act in a particular way in the event of pandemics under international human rights law. However, tension may arise as the performance of such obligations may clash with key individual rights of populations. South Africa is one of the most unequal nations in the world, yet its COVID-19 regulations were implemented with minimum regard for certain socio-economic rights of the population. Based on this finding, it is recommended that states, including South Africa need to respect, protect, and fulfil the enjoyment of basic human rights during pandemic times.
MacKenzie, Neil, ‘South African Competition Law in the New World’ (2020) 20(7) Without Prejudice 8–9 Abstract: The South African Competition Tribunal recently found a firm guilty of abusing its dominance. The firm was a small trader with a market share of 4.7%. The illegal conduct comprised excessive pricing of face masks for a period of just over one month. The investigation, prosecution and adjudication took less than three months. The fine was R76 040. :
Mahomed, Imraan, Faan Coetzee and Yusuf Omar, ‘Infected by COVID-19: The Antidote for Labour Litigation with a Whistle-Stop around the World’ (2021) 21(2) Without Prejudice 48–51 Abstract: The Constitutional Court has decried the snail’s pace which besets the finalisation of some employment related disputes on a number of occasions. In many instances, this is the result of institutionalised delays through the courts and must be seen through the prism of the requirement that employment related litigation must be expeditiously resolved. :
Maimela, Charles (ed), Technological Innovation (4IR) in Law Teaching and Learning: Enhancement or Drawback during Covid-19 (Pretoria University Law Press, 2022) *[OPEN ACCESS BOOK]* Book summary: Technological innovation (4IR) in law teaching and learning: Enhancement or drawback during Covid-19? book emerged from a lecture series the Faculty of Law at UP hosted in the 2021 academic year. Aiming to test the state of teaching and learning during the pandemic, the lecture series asked whether ERT and learning (ERTL) compromised or enhanced the teaching and learning of law. Among others, various academics from UP Law as well as from the universities of KwaZulu-Natal, Johannesburg and Free State. as well as officials from the DHET, participated in the series. This collection comprises chapters written by some of the representatives who were involved in the lecture series. This book aims to set the tone for teaching and learning of law after the pandemic. It is our hope that the lessons learnt during the pandemic will be adopted in the day-to-day teaching pedagogy of law in the future. Despite the disruptions caused by the pandemic, a possibly unseen benefit can be identified. As this book argues, law teaching and learning using technological innovations have been positive for both academics and students. Thanks to technological innovation, the discipline of law is arguably in a far better position after the pandemic than before.
Maphumulo, Mtho, ‘COVID-19 Law Enforcement Incompetence and Brutality Not a New Thing’ (2020) 20(5) Without Prejudice 56–57 Abstract: It is often said that the best time to fix a leaking roof is in winter when there are no storms or heavy rains. This has proved to be true as South African law enforcement agencies inabilities have been exposed by the COVID-19 outbreak.
Mashishi, Thato, ‘The Convergence of COVID-19 and Force Majeure’ (2020) 20(3) Without Prejudice 10 Abstract: On 11 March 2020, the World Health Organisation (‘WHO’) characterised COVID-19 as a pandemic pursuant to an assessment by the WHO. As the global community grapples with COVID- 19 and its ramifications, parties to commercial agreements have not been spared from panic in respect of the adverse effects on those agreements.
Mashishi, Thato, ‘To Pay or Not to Pay in the Context of COVID-19’ (2020) 20(5) Without Prejudice 55–56 Abstract: To pay or not to pay has become an imperative question asked by retail tenants in the context of rental due pursuant to lease agreements. The question is raised in the wake of an extension of the lockdown as announced on 9 April by President Cyril Ramaphosa.
McQuoid-Mason, DJ, ‘COVID-19: What Should Employers Do If Employed Health Professionals Such as Doctors and Nurses Refuse to Treat COVID-19 Patients despite Being Provided with the Required Personal Protective Equipment?’ (2020) 13(2) South African Journal of Bioethics and Law 87–90 Abstract: At some health establishments doctors and nurses employed there are refusing to treat Covid-19 patients - even though they have been provided with the necessary personal protection equipment (PPE). Such conduct would appear to be in breach of the World Medical Association International Code of Medical Ethics , the International Council of Nurses Code of Ethics for Nurses , the Rules of Conduct of the Health Professions Council of South Africa, the South African Nursing Council, some of the provisions of the South African Constitution and of the relevant labour legislation. Guidance is provided to employers on how to deal with the situation based on ethical and legal considerations. :
Meyer, Susan, Preanka Gounden and Charissa Barden, ‘More Bark and Bite: Competition Law as an Additional Means of Post-Pandemic Support’ (2020) 20(5) Without Prejudice 29–30 Abstract: The Competition Act (89 of 1998) and its noble purpose of, among other things, supporting historically disadvantaged persons (HDPs) and small, medium and micro enterprises (SMMEs), has been in force for just over two decades. Certain 2019 amendments to the Act specifically sought to strengthen efforts to promote economic inclusiveness of SMMEs and HDPs. It is in this regard that competition law may provide additional support, a proverbial bark and bite, to existing government efforts aimed at achieving a more equitable society. This has particular relevance in a post-pandemic context. :
Milo, Dario et al, ‘The Effect of COVID-19 on Cybersecurity and Cyber Breaches’ (2020) 20(6) Without Prejudice 19–20 Abstract: With more employees working from home during the COVID-19 pandemic, the risk of cybercrime has escalated, and the need to have proper systems and procedures in place has become even more important.
Mntwelizwe, Sandisiwe and Paul S Masumbe, ‘The Response of Labour Law to COVID-19 Related Dismissal in South Africa’ (2024) 13(3) Perspectives of Law and Public Administration 402–416 Abstract: The outbreak of the COVID-19 pandemic in 2020 imposed sudden and severe hardship on several businesses. It not only resulted in fatalities, but it also caused significant numbers of job losses. As a result of the COVID-19 outbreak employees in the workplace had to adapt to the new normal and certain constitutional rights were limited. Many employees were retrenched, and as a result, these COVID-19 retrenchments were not procedurally or substantively fair. The post COVID-19 period has highlighted that much work needs to be done to reform our existing labour laws. During pandemics, current labour regulations do not help. As a result, the question arises as to how far the Labour Relations Act 66 of 1995 protects employees in the workplace in times of public health emergencies. This article will look at how labour laws responded to COVID-19 retrenchments. It will also go over the forms of dismissal and important judicial decisions handed down during the COVID-19 period that support the idea that retrenchments made during the COVID19 period were unfair. Thus, the authors will examine how to maintain the promotion of justice in the workplace and provide a discussion of law reform ideas that can be used to address the employment law-related flaws of the COVID-19 period will be presented in order to avoid the same challenges during pandemic periods that the country may face in future.
Mokofe, William Manga and Stefan van Eck, ‘COVID-19 at the Workplace: What Lessons Are to Be Gained from Early Case Law?’ (2022) 55 De Jure Law Journal 155–172 Abstract: The emergence of the COVID-19 pandemic and its consequences were overwhelming at South African workplaces. It had a significant impact on public and private life in South Africa and harsh rules were imposed that severely restricted social gatherings and other economic activities. Employers and employees grappled with issues like compulsory vaccinations, social distancing and the implementation of workplace policies at the workplace. The repercussions of the COVID-19 limitations are still being experienced after the lifting of the state of disaster. Among the issues are a troublesome economic downturn, significant job losses and a struggle to convince workers to return to workplaces. The Constitution, 1996 establishes a human rights-centred backdrop against which the picture of the pandemic is unfolding. Added to this, South Africa has a range of legislative instruments that regulate aspects like unfair dismissal and collective bargaining at workplaces. This placed South Africa in a position to regulate the COVID-19 pandemic in society at large, and workplaces in particular. A collection of the tribunal and court decisions regarding COVID-19 at the workplace have wound their way through the dispute resolution institutions. This contribution navigates relevant aspects of the Constitution as well as disaster management and labour legislation before reflecting on a selection of jurisprudence. The authors argue that there are important lessons to be gained from these early cases. Nonetheless, there are also unanswered questions of a constitutional nature that still need to be finalised. They also voice suggestions in the conclusion that may be of assistance to employers, employees, academics, and policymakers alike - that would also apply should future pandemics pester the South African society.
Mpe, Palesa and Jeremy de Beer, ‘What’s with the Price Gouging?’ (2020) 20(7) Without Prejudice 6–7 Abstract: COVID-19 has brought with it some legal developments in South Africa. Along with citizens navigating nationwide lockdowns, prohibitions and curfews, competition authorities also find themselves in uncharted territory. The Competition Tribunal has, to date, heard and delivered judgment on two COVID-19 related excessive pricing matters. These matters have introduced a new concept into the South African competition law landscape: ‘price gouging’.
Mubangizi, John C, ‘Poor Lives Matter: COVID-19 and the Plight of Vulnerable Groups with Specific Reference to Poverty and Inequality in South Africa’ (2021) 65(S2) Journal of African Law 237–258 Abstract: This article explores the impact of the COVID-19 pandemic on vulnerable people in South Africa in the specific context of poverty and inequality. It does so by first looking at the conceptual context and then highlighting the extent of the impact both from a constitutional and human rights context and from a legislative context. It uses the poor and vulnerable as a proxy to explore the impact of the pandemic (and the measures put in place to contain it) on the specific constitutional rights of vulnerable people, before suggesting a human rights-based approach to managing the pandemic. It concludes that, despite the South African government having undertaken some of the actions recommended, there remains room for improvement and scope for further research, as the pandemic is expected to continue for some time. :
Mudau, Paul, ‘Has the COVID-19 Pandemic Exposed the Fragility of South Africa’s Constitutional Democracy?’ (SSRN Scholarly Paper No ID 3821643, 23 July 2020) Abstract: On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the National Coronavirus Command Council mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy. :
Mukherjee, Gaurav, ‘Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town’ (SSRN Scholarly Paper No ID 3744891, 8 December 2020) Abstract: In this article, I comment on the judicial responses to several incidents of eviction and demolition of illegal structures during the COVID-19 lockdown by Cape Town City officials, including members of the Anti Land Invasion Unit. The cases implicate complex legal questions, many of which are heavily contingent on factual situations: first, whether it was permissible for City Officials to conduct evictions and demolitions when they had been specifically disallowed by section 36(1) of Alert Level 3 Regulations; second, whether the protections afforded by the PIE Act extends to structures which may not be fully completed nor occupied; third, the relationship between the common law remedy of counter-spoliation and its applicability to situations of land invasion where housing rights and judicially supervised eviction and demolitions are concerned, and fourth, the constitutionality of the manner of determination of whether a structure is built or occupied – the response to which determines whether the provisions of the PIE Act kick in. Finally, I also comment on the accountability of private actors tendered to carry out evictions and demolitions – which may create perverse incentives to maximize their numbers, with little regard for constitutional safeguards. :
Mulligan, Tanya and Neil Coetzer, ‘Incapacitated by the Lockdown: Exploring the Possibility of Temporary Legal Incapacity’ (2020) 20(4) Without Prejudice 10–11 Abstract: The National Lockdown imposed by government in terms of the Disaster Management Act has prompted considerable debate about its effects on the treatment and payment of employees during this period. The Regulations and Directives issued in terms of the Act have been silent on the issue, while statements by the Department of Employment & Labour, in particular, have served only to confuse things further. :
Nanima, Robert Doya, Ebenezer Durojaye and Derek M Powell, ‘Constitutional and Human Rights Issues Arising from Covid-19 in South Africa’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 341–369 Abstract: South Africa announced a national lockdown on 17 March 2020 following the outbreak of Covid-19. Its approach to the pandemic has been based on a patterned model in which restrictions imposed in terms of the Disaster Management Act are categorised in degrees of intensity ranging from level 1 (least intense) to level 5 (most intense). In the period between the first wave of infection in early 2020 and the second wave in January 2021, the country moved from level 5 to level 1 before shifting to level 3. A surge in infection numbers led to three restrictions as of 17 June 2020 and again in 2021. There is no doubt that various sectors of the population have been adversely affected, among them women, children and the elderly. This chapter evaluates the response to the pandemic by South Africa’s executive, Parliament and judiciary, and analyses its implications for constitutionalism.
Ncube, Caroline, ‘The Musings of a Copyright Scholar Working in South Africa: Is Copyright Law Supportive of Emergency Remote Teaching?’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium II: Intellectual Property, Technology and Agriculture) Introduction: As we were reminded on twitter recently, The Statute of Anne, the world’s first copyright law, came into effect on April 10, 1710, three centuries and a decade ago. Its title reads in part, ‘An Act for the Encouragement of Learning…’. The veritable links between copyright and the right to education have been established by several scholars …The Statute of Anne is a forebear of South African copyright law which has its roots in English copyright law … Against this background, this post asks ‘is copyright still true to its original intent and is it supportive of emergency remote teaching in alignment with the right to education?’ :
Ndlovu, Lonias and Clarence Itumeleng Tshoose, ‘COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes’ (2021) 33(1) SA Mercantile Law Journal 25–55 Abstract: Public health emergencies such as the novel coronavirus (COVID-19), which was elevated to a global pandemic, usually have severe implications for people in various spheres of life. For example, people’s employment and social welfare are affected. In this paper, the authors explore the possible implications of COVID-19 on the rights of employers and employees in South Africa. The issues that need to be considered include leave when employees elect to stay at home as a precautionary measure against contracting the coronavirus at work, the enforcement of employment contracts, employment security, workplace discipline, working hours, absenteeism, and the employer’s duty to provide the employees with a safe working environment. Using a doctrinal legal research method, the article provides an analysis of the applicable laws and cases from South Africa and related jurisdictions. The comparative content, analysis of legislation, case law, and sector-specific guidelines show that COVID-19 has and will continue to have a significant impact on the employment laws as reflected in different jurisdictions. Although employment law is generally jurisdiction-specific, there are many commonalities in the laws of different countries, both on the African continent and globally. It is also important to note that the existing employment laws need to be adjusted in order to accommodate the effects of the pandemic. For example, South Africa can draw valuable lessons from other jurisdictions on how to deal with employment matters during a pandemic, and therefore COVID-19 presents the country with an opportunity to develop both its employment laws and the common law.
Nemakonde, Livhuwani D and Olivia Kunguma, ‘Revealing the Boon and Bane of South Africa’s Disaster Management Legislation during COVID-19’ (2024) 16(1) Jàmbá: Journal of Disaster Risk Studies Article a1689 Abstract: Legislation provides a framework for effective and coordinated disaster preparedness and response. This article evaluates the strengths and shortcomings of South Africa’s disaster risk management (DRM) legislation in guiding the response to the COVID-19 pandemic. Since its promulgation in 2002, South Africa’s DRM legislation has been hailed as one of the most progressive legislations globally. However, the severe respiratory syndrome coronavirus 2, commonly known as the COVID-19 pandemic, exposed inadequacies in most existing DRM legislation worldwide, including in South Africa. This led to an inadequate response to the pandemic. The review highlighted significant inadequacies of South African DRM legislation, including the placement of the National Disaster Management Centre and the establishment of new structures for COVID-19 response. Based on the findings of this study, disaster managers, as the primary implementers of the disaster management legislation, must motivate the constant review of the disaster management legislation as a way of mitigating social, economic, political and environmental impacts of disasters, which emanate from the inadequacies existing in the disaster legislation. Contribution: The study’s findings contribute to the effective management of the disaster management fraternity by suggesting amendment of the legislation based on the experience during the pandemic. The recommendations made to disaster managers will assist with responding appropriately to future pandemics and other disasters.
Niekerk, Bouwer van and Parveen Munga, ‘A Perspective on Directors’ Duties in the Time of COVID-19’ (2020) 20(5) Without Prejudice 16–18 Abstract: The standard of directors’ conduct is key to the success, or failure, of companies. The Companies Act of 2008 sets out the duties, standards of conduct and liabilities of directors. These duties include fiduciary duties, a duty to act in the best interests of the company and a duty of reasonable care. Directors may be held liable for any loss, damages or costs sustained by a company as a consequence of any breach by directors in the execution of these duties.
van Niekerk, Bouwer and Parveen Munga, ‘COVID-19 and the Right to Freedom of Movement’ (2020) 20(4) Without Prejudice 20–22 Abstract: Section 21 of our Constitution concerns the rights to freedom of movement and residence, in terms of which every person is guaranteed the right to freedom of movement and every citizen is guaranteed the right to enter, remain and reside anywhere in the Republic. The importance of the rights enshrined in s21 cannot be overstated. Its effect is to preclude the former policy of segregation and the severe restrictions imposed on the black populace. It, like many of the rights enshrined in our Constitution, also serves as a stark reminder of the conditions and status quo that warranted the inclusion of a right seemingly manifest. Remarkably, this section is not comprehensively dealt with in some of our most esteemed academic works dealing with our Constitutional Law. The reason for this is, in all likelihood, axiomatic – this right is so manifest that academic scholars have found neither the need nor the inclination to expand on it. There are also not (as of yet) any groundbreaking Constitutional Court judgments in our jurisprudence opining on this section, as this has never been seriously challenged in our young democracy. But now the national lockdown is infringing upon this very right; our personal movements are curtailed, which halts our ability to trade and disallows something as significant as attending funeral of a loved one. How is it that this right can be so fundamentally and so drastically impeded?
Nongogo, Anele, ‘Electronic Signatures in Commercial Contracts’ (2020) 20(4) Without Prejudice 46–47 Abstract: The outbreak of the COVID-19 virus has led to most South Africans working from home or other remote areas. A direct result of this is the lack of access to office equipment such as printers and scanners, which means that some commercial contracts will now have to be signed electronically. This article will discuss the use of electronic signatures and advanced electronic signatures in commercial contracts in South Africa, focusing on the Electronic Communications and Transactions Act (25 of 2002) (ECTA). The ECTA is the primary legislation that regulates electronic signatures and advanced electronic signatures.
Nupen, Lili et al, ‘Mining Law in the Midst of a Pandemic’ (2021) 21(1) Without Prejudice 9–11 Abstract: The COVID-19 pandemic has tipped the world into social and economic turmoil. Following the announcement of the national lockdown in March 2020, the operation of the South African mining industry, including ancillary and production activities relating thereto, was largely suspended, save for those operations concerning the generation of coal-fired electricity, and the production of gold.
Nyawo, Pamela, ‘Law, South African Mothers Living in Poverty and the COVID-19 Pandemic’ (2023) 26 Potchefstroom Electronic Law Journal (Published on 23 March 2023) Abstract: Sometimes being a mother in tough economic times can be a challenge. Socio-economic demands occasioned by the COVID-19 pandemic have been especially cumbersome for mothers already living under conditions of poverty. Since the beginning of 2020 the pandemic has further exacerbated the daily struggles of the poor during periods of economic uncertainty, disease and death. Conscious of this additional socio-economic pressure and to lessen the financial burden carried by mothers living in poverty, the South African state introduced a COVID-19 relief Child Support Grant to assist during this trying period. This article explores the role played by law in poverty discourse where mothers are concerned. It is suggested here that the conceptualisation of poverty in law, at least where mothers are concerned, is limited by law’s neglect of the socio-political identity of women as mothers, which is rooted in history. This failure reaffirms that law is implicated in contemporary socio-economic inequalities
Odeku, Kola O, ‘Using Blackboard Collaborate for Law Pedagogy Amid a Spiraling Covid-19 Pandemic in a Historically Disadvantaged Black South African University’ (2021) 11(3) Journal of Educational and Social Research 241–251 Abstract: The COVID-19 continues to threaten and ravage human beings and all aspects of human existence and activities of which the educational sector is one of the hardest hit. This notwithstanding, the sector has decided to deal decisively with the various challenges such as the continuation of law pedagogy amid the pandemic. This paper emphasizes the uniqueness of providing and delivering law pedagogy predominately through online resources and tools in virtual classroom settings and spaces. The paper established that the traditional in-person, face-to-face classroom settings and spaces have been disrupted by the pandemic and as such, innovative methods of delivering law pedagogy such as the use of one of the most potent pedagogical tools, the Blackboard Collaborate (BC) to conduct and deliver law modules to law students becomes imperative. This paper examines the novel system, its challenges, and prospects.
Oliver, Marius, ‘Social Security for Migrants Post-COVID-19: Revisiting the Legal and Policy Framework’ in Shirin Motala, Tim Hart and Stewart Ngandu (eds), Social Security in The Time of Covid (South African Department of Social Development, 2024) 20–39 Abstract: This chapter critically reflects on the legal and policy framework informing social security policy-development and-implementation in relation to migrants – given the heightened vulnerability and movement restrictions experienced during the COVID-19 pandemic. The adoption of COVID-19 social security measures had some impact on particular migrant categories – temporary migrant workers and undocumented migrants being left extremely exposed. The existing legal and policy framework is restrictive and incomplete while the judicial responses have been consistently mindful of the protection to be afforded to migrants. With reference to constitutional prescripts and international law standards, a pandemic context requires much more extensive access to medical treatment and services, and to basic forms of assistance, irrespective of migrant category. This is justified by the heightened vulnerability experienced by asylum-seekers in the event of a public health emergency, including pandemics such as COVID-19, and as a result of movement restrictions. Considering that international law perspectives on migrants’ social security protection are particularly instructive, and given the international law-friendly approach of the South African Constitution, it is argued that South Africa could benefit from ratifying and implementing a number of key social security conventions at the global and regional level, and concluding dedicated bilateral labour and social security agreements, providing for migrants’ social security protection on a reciprocal basis. There appears to be an urgent need for the design and implementation of an integrated policy dealing with access to social security for migrants, also in a pandemic context, to be accompanied by an aligned legal framework.
Phillips, Burton and Ahmed Rajan, ‘Tribunal Hearings in Unprecedented Times’ (2020) 20(4) Without Prejudice 51–52 Abstract: As a consequence of the COVID-19 pandemic and the resulting national lockdown, the use of technology by legal practitioners, courts, tribunals and other adjudicators has become more important than ever before. The lockdown has prevented adjudicators such as the Competition Tribunal, from conducting proceedings in a ‘business as usual’ manner by restricting its ability to conduct physical hearings. The South African competition authorities responded swiftly to the crisis, and have adapted to new means of ensuring the continuity of competition litigation. This has been achieved through the use of virtual working platforms such as Microsoft Teams and Zoom. Could this crisis usher in a new way of conducting proceedings before the Tribunal, particularly in uncontested matters or matters having limited issues in dispute?
‘Police Minister Welcomes the Decrease in Serious and Violent Crimes since the Lockdown: Info’ (2020) 113(5) Servamus Community-based Safety and Security Magazine 57 Abstract: During April 2020, the Minister of Police, Gen Bheki Cele, welcomed the general decrease in serious and violent crimes, attributing this to, among others, the prohibition of the sale and movement of liquor since the COVID-19 nationwide lockdown.
Pooe, TK, ‘Ending 1990s Law and Development Ideas, Paradox of Path Dependence in Economic Planning Institutions Under Covid-19: SA’s Response’ (2024) Law and Development Review (advance article, published online 6 March 2024) Abstract: This paper argues that the COVID-19 pandemic can and should be understood as a form of creative destruction (Schumpeter’s gale), at a hyper level owing to its biological/medical dimension. Therefore, the critical response to such a hyper force is to rethink how institutions administer Public Policy in South Africa (Path Dependency), most importantly economic development planning institutions and Covid-19 responses, in the form of ‘The Economic Reconstruction and Recovery Plan’. It’s the contention of this paper that the reason why Covid-19 continues to impact the South African government’s economic planning ethos is anchored in its developmental orientation, particularly how constitutional legalism has impaired economic development planning. This could impart be due to the unaddressed influences of the initial waves of Law and Development post-1994. The South African experience with the initial waves of Law and Development were muted owing to the problematic nature of the 1994 transition which sought peace at all costs without necessary addressing substantive economic development reform considerations. Therefore, using the policy experiences of Covid-19 and Lee’s, General Theory of Law and Development, particularly the aspects of Development and State Capacity and Political Will, a revision of the South African Constitution will be called on, principally chapter’s 2 and 6 (Bill of Rights) and (Province).
‘Privacy Is Protected, Even during a Pandemic: Research’ (2020) 113(6) Servamus Community-based Safety and Security Magazine 58–58 Abstract: Many South Africans have expressed valid concerns about the potential for abuse of personal information collected by government as part of tracking and tracing those exposed to COVID-19 infection. Yet, the approach taken appears to be well-balanced, even though the Protection of Personal Information Act of 2013 (POPI) has not yet come fully into operation. Electronic Communication Service Providers (ECSPs) such as Internet Service Providers (ISPs) can only provide personal information required to combat COVID-19 to the Director-General of the Department of Health for inclusion in a database which is subject to several restrictions.
Raliile, Mohlomi, Theo Haupt and Mariam Akinlolu, ‘Rethinking Construction Health and Safety Legislation Compliance: Lessons Learnt from COVID-19 -Pilot Study’ in Proceedings of the Joint CIB W099 & W123 International Conference 2021: Changes and Innovations for Improved Wellbeing in Construction (2021) Abstract: Despite numerous attempts to enforce construction health and safety legislation, low levels of compliance with health and safety requirements and high rates of accidents continue to exist in the construction industry. The far-reaching impact of the novel coronavirus has spawned the attention of international and national regulatory bodies and has led to the promulgation of emergency legislations both temporary and permanent. This study aims to identify lessons learnt from the COVID-19 pandemic to rethink the significance of health and safety legislation. The study further identifies how these changes have improved the overall safety landscape on construction sites. A quantitative method of data collection was adopted, and data were analysed using IBM Statistical Package for Social Sciences (SPSS) version 25. Descriptive and inferential statistics were used to analyse the data collected. The sample size for the study was 21 contractors in the region of Kwa-Zulu Natal province in South Africa. This is a pilot study which forms part of an ongoing empirical research. The study reveal that construction companies are conducting COVID-19 risk and mitigation plans, detailing the implementation plans for the safe re-activation of construction sites and the industry. It is incontestable that the pandemic has succeeded in probing the alertness, readiness and commitment of construction stakeholders as they are obliged to protect, respect and fulfil the rights to health of their workers. Although there are challenges regarding the susceptibility of the industry to the consequences of COVID-19 such as contractual obligations, additional provisions, pricing strategies and supply chain changes; the rapid response to the pandemic by construction stakeholders is unprecedented and commendable. It is hoped that after the pandemic, contractors will maintain the level of commitment and compliance with health and safety legislation in pursuing the full realisation of the health and safety of their workers as a do or die situation.
Ramnanun, Kajal, Rajendra Rajaram and Phocenah Nyatanga, ‘Business Rescue Legislation: Rehabilitating or Debilitating Business Rescue Success During Covid-19’ (2022) 17(4) African Journal of Business and Economic Research 101–121 Abstract: In South Africa (SA), business rescue was introduced in 2011 to assist financially distressed companies. However, the COVID-19 pandemic triggered an avalanche of economic uncertainties, and in 2020, SA became the fifth highest country affected by COVID-19 infections, resulting in a total shutdown of all businesses, except for essential services. The combined effect of lockdown levels and collapses in supply chains resulted in a 42% increase in companies filing for business rescue between April and October 2020. This study diagnosed the shortcomings of the current business rescue legislation, in the context of a pandemic, which could have affected the financial rehabilitation of those companies applying for business rescue. The discussion is grounded on existing business rescue literature. This study comprised of a critical review of existing literature, as a methodology to conduct the study. The study identified several shortcomings such as inadequate time frames for the business rescue process, insufficient definition of reasonable prospect and a lack of procedures for a company filing for business rescue in a pandemic that could have impacted distressed companies and compromised prospects of resuscitation. The study recommends that amendments be made to current legislation as a panacea for distressed companies due to COVID-19.
Rapuleng, Thabang, ‘Days of Our Lives in the “New Normal”: Retrenchments in Southern Africa Post COVID-19’ (2020) 20(6) Without Prejudice 56–57 Abstract: The global COVID-19 pandenmic has brought about unprecedented changes to the employment landscape and thrust us into a ‘new normal’. In looking beyond COVID-19, this article seeks to give a cursory overview of what constitutes an employment relationship, to determine whether an employment contract may be terminated on the basis of operational requirements and, lastly, to examine whether employees who have been retrenched on the basis of operational requirements are entitled to severance packages in Botswana, Lesotho, Mozambique and Namibia.
Roudik, Peter et al, ‘Freedom of Expression during COVID-19’ (Law Library of Congress Legal Report, September 2020) Abstract: This report, prepared by the research staff of the Law Library of Congress, surveys legal acts regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. The report focuses on recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan.
‘SAAPA SA’s Response to Lockdown Regulations on Alcohol’ (2020) 113(5) Servamus Community-based Safety and Security Magazine 56 Abstract: The Southern African Alcohol Policy Alliance in South Africa (SAAPA SA) welcomed the COVID- 19 lockdown regulations announced by Minister of Police, Mr Bheki Cele on 25 March 2020 prohibiting the distribution and sale of liquor for the lockdown period. This prohibition certainly helped to address the concerns that SAAPA SA and its regional partners have been communicating with regard to the risks that the use of liquor poses for controlling COVID-19. This message, which has been echoed in posters circulated by government, has focused on two key issues.
Scott, Rob and Zara Sher, ‘South Africa : COVID-19 Related Insurance Claims and Coverage’ (2020) 20(6) Without Prejudice 21–23 Abstract: The outbreak of the coronavirus (COVID-19) pandemic has raised many questions around insurance coverage with regard to COVID-19 related losses, exposures and liabilities.
Séverin, Marianne and Hannah Muzee, ‘COVID-19 Entrepreneurs: Corruption and the Violation of the Rights of Health and Development in South Africa and Uganda’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: While the COVID-19 pandemic caught many countries and governments unawares, some suffered more than others. In Africa, with a highly inefficient public service and dysfunctional welfare state, African governments had to act fast to prevent a high death toll. South Africa implemented a 23-day lockdown right after the first infection was reported, 18 days before Italy. The United States, having, had one of the world’s most significant casualties, introduced COVID lockdowns in March 2020. Screening at ports of entry was instituted for those coming into the country, where travellers were required to present a negative PCR test that was not older than 72 hours and subsequently proof of vaccination. In addition, the government intensified the distribution of information to private and public healthcare workers and the public about the pandemic (Villiers et al., 2020). Furthermore, a National State of Disaster was declared on 15 March 2020 to not only enable the government of South Africa to slow down the infection rate but also ease the pressure on the healthcare system. Since the population was not economically active, several strategies were introduced to alleviate the suffering of the people, such as the R350 social relief of Distress Grant, the COVID-19 Temporary Employer/Employee Relief Scheme (TERS). It aimed to provide wage support to workers, and other relief schemes to small businesses, including the extension of validity of vehicle and driving licenses (South African Government, 2022).
Sindane, Ntando, ‘Prophecy and the Pandemic: The Vindication of Decolonial Legal Critical Scholarship’ (2022) Southern African Public Law (advance article, published 29 June 2022) Abstract: The ongoing COVID-19 global pandemic offers the legal academy a special opportunity to reflect on various conceptual, ideational, and ideological questions that cleavage the academy and society. In this exposition, I embrace an exegetical-cum-legalist enunciation to analyse the material conditions that define the lives of the historically and presently colonised peoples of South Africa. In the main, this treatise advances two arguments: (1) that the present socio-economic conditions illustrate the decisive thrust of decolonial legal critical scholarship and its ability to predict the future; and (2) that critical approaches to the law constitute a legitimate intellectual prophetic engagement. I conclude by insisting that decolonial legal critical scholarship should be the cornerstone and a focal point of emphasis in the calls to shift [and decolonise] all facets of the law and its curriculum.
van Staden, Martin, ‘Constitutional Rights and Their Limitations: A Critical Appraisal of the COVID-19 Lockdown in South Africa’ (2020) 20(2) African Human Rights Law Journal 484–511 Abstract: The purpose of the rule of law, entrenched as supreme in section 1(c) of the South African Constitution, is to guard against tyranny. If the rule of law is conceptualised as a meta-legal doctrine that is meant to permeate all law in the promotion of certainty, predictability and accessibility, in the interests of safeguarding constitutional rights, this makes sense. Yet, the COVID-19 pandemic has seen the reach of state power expand at the expense of these rights. South Africa’s COVID-19 lockdown, and within at least its first five months carrying the endorsement of the courts, has made a mockery of the rule of law so conceived. This article considers the constitutionality of South Africa’s COVID-19 lockdown against the backdrop of the constitutional rights limitation regime within the broader theoretical framework of constitutionalism and the rule of law. This analysis is conducted in the context of some early challenges brought against the lockdown in four High Court cases. The article concludes that the South African government, with the partial endorsement of the courts, has strayed beyond the bounds of the Constitution and engaged in unjustified violations of constitutional rights.
Staunton, Ciara, Carmen Swanepoel and Melodie Labuschagine, ‘Between a Rock and a Hard Place: COVID-19 and South Africa’s Response’ 7(1) Journal of Law and the Biosciences Article lsaa052 Extract from Introduction: Considering the time it took to reach its borders, South Africa had time to prepare a COVID-19 response and draw on the importance of its community-informed response to other epidemics. However, despite the impact that these regulations were going to have on civil society, the lack of public deliberation and community engagement in developing these regulations is concerning. Furthermore, the criminalization of non-compliance with these public health measures seeks to undermine their aims, has the potential to increase stigma and discrimination of the disease, and fails to address the real issue: ensuring that the population has the means to comply with the regulations. Combined, these factors question whether South Africa has learned from its response to its HIV epidemic. In outlining the first month of South Africa’s COVID-19 response, this paper will critique the lack of engagement and the criminalization of non-compliance and discuss their potential impact.
Stein, C and A Dhai, ‘Consent in Health Research with Incapacitated Adults in a Time of Pandemic : The National Health Research Ethics Council Needs to Urgently Reassess Its Guidelines: Research’ (2020) 13(1) South African Journal of Bioethics and Law 29–33 Abstract: In most instances, health research involves patients who are capable of giving informed consent, a statutory and ethical requirement. A smaller subset of patients lacking this capacity owing to their condition present an ethical problem, particularly because both the Bill of Rights of the Constitution of South Africa, and the National Health Act, require adult participant consent, without exception. Local research ethics guidelines, as a way of facilitating such research, suggest the use of a strategy combining proxy and delayed consent. Under conditions of a pandemic, research involving possibly large numbers of critically ill, incapacitated adults is likely. However, with lockdown restrictions, proxy decision-makers will not be available much of the time. Currently, local guidelines do not address the problem of what ought to be done in situations where incapacitated research participants die before being able to provide delayed consent for use of their research data. Under such circumstances, retention and use of such data is ethically justifiable based on the resultant public health benefits. The National Health Research Ethics Council needs to urgently reassess its consent guidelines in this respect.
Steytler, M and DW Thaldar, ‘Public Health Emergency Preparedness and Response in South Africa: A Review of Recommendations for Legal Reform Relating to Data and Biological Sample Sharing’ (2021) 14(3) South African Journal of Bioethics & Law 101–106 Abstract: COVID-19 exposed flaws in the law regulating the sharing of data and human biological material (HBM). This poses obstacles to the epidemic response, which needs accelerated public health research and, in turn, efficient and legitimate HBM and data sharing. Legal reform and development are needed to ensure that HBM and data are shared efficiently and lawfully. Academics have suggested important legal reforms. The first is the clarification of the susceptibility of HBM and HBM derivatives to ownership, including, inter alia, the promulgation of a revised version of the South African Material Transfer Agreement (SA MTA) by the Minister of Health. This would remove uncertainty regarding the current SA MTA’s perpetual donor ownership clause. The second is the development of data trusts, the adoption of open access to research data, and the creation of an African ‘data corridor’. This would ensure that data are protected while allowing for the efficient transfer of data between researchers for the collective good and in the interest of the public. The third is the amendment of the Space Affairs Act to extend the powers of the Council of Space Affairs to include the management of data collected through the utilisation of Earth observation and geographical information systems. This would ensure the protection of outer space data, legislating its use and sharing once it lands on Earth. The implementation of these legal reforms and developments will better prepare SA to face future epidemics from a health research perspective.
‘The Impact of a Pandemic on Organised Criminal Groups’ (2021) 114(2) Servamus Community-based Safety and Security Magazine 39–41 Abstract: COVID-19 does not only impact on society and the economy, but it also impacts and shapes organised crime and illicit markets. The initial response to the pandemic affected the operation of criminal networks across the globe. While the pandemic has reduced some organised criminal activities, it has simultaneously provided opportunities for new ones.
Townsend, BA, M Mars and RE Scott, ‘The HPCSA’s Telemedicine Guidance during COVID-19: A Review’ (2020) 13(2) South African Journal of Bioethics and Law 97–102 Abstract: The confluence of COVID-19 and raised interest in the application of ‘e-health’ (electronic- health) or ‘d-health’ (digital health) innovations has occurred throughout the world. Leadership in many countries has risen to the crisis by rapidly developing, refining, or retooling e-health solutions as well as existing legislation and guidelines to permit their swift implementation. Anticipation globally is that these events will stimulate sustained change in the interest in and use of e-health (e.g., telehealth, telemedicine, m-health, e-learning, and health informatics). In South Africa the existing stance of the Health Professions Council of South Africa hampered this response, initially even in the face of the pandemic. This paper briefly reviews recent events in South Africa, relevant World Medical Association statements, and international COVID-19 related response. It concludes the HPCSA must acknowledge global experience, and provide South Africa with clear, evidence-based, and clinically practicable guidelines that promote and sustain use of telemedicine broadly, now and post-COVID-19.
Townsend, Beverley, ‘The Lawful Sharing of Health Research Data in South Africa and Beyond’ (2022) 31(1) Information & Communications Technology Law 17–34 Abstract: Personal information, in particular health-related information, used in conjunction with data analytics and shared with researchers, is a valuable tool in health research and development. In light of the public health emergency arising from the COVID-19 pandemic and new African data protection laws, this paper addresses the regulation of data sharing and transfer. Three broad questions addressed are: (i) What are the existing legal modalities governing and protecting data use and sharing in South Africa, and, more generally, in Africa? How can data be transferred into and out of South Africa? (ii) What can be learned from recent international developments in data transfer? And, lastly, (iii) where plausible how might data flows throughout Africa be facilitated in the interests of public health during times of pandemic? This paper explores these questions with specific emphasis on the importance of health and research data transfers in light of the COVID-19 pandemic.
van Aardt, Willem, ‘State of Emergency in South Africa, Mandatory Covid-19 Vaccination and International Human Rights Law’ in Ana Čović and Oliver Nikolić (eds), Pravni i Društveni Aspekti Vakcinacije Tokom Pandemije Kovida 19 / Legal And Social Aspects Of Vaccination During The Covid-19 Pandemic (Institute of Comparative Law, 2022) 205–225 *[OPEN ACCESS BOOK]* Abstract: Recent events across the globe have again brought the world’s attention to the complex interrelationship between States of Emergency and the protection of fundamental human rights. South Africa was the first African country to declare a national state of emergency. As part of its emergency response to the Covid-19 pandemic, South Africa’s Health Minister in April 2021 announced the launch of its mass vaccination campaign against Covid-19. Derogation provisions in the International Covenant on Civil and Political Rights allow for States Parties to lawfully suspend human rights guarantees to respond to an emergency ‘that threatens the life of the nation’ To decide on both the presence of such an emergency and the nature and scope of derogations necessary to avert it, authorities have a wide margin of appreciation. Derogation from rights recognized under international human rights law to respond to ‘a threat to the life of the nation’ is, however, not exercised in a legal vacuum. It is authorized by law, and as such, it is subject to several legal principles and standards. An emergency that threatens the life of the nation must imperil fundamental elements of statehood or the survival of the population. No State party has the right to violate citizens’ right to life and the right to be free from torture, cruel, inhumane, or degrading treatment, and the right to be free from medical experimentation without free consent. These jus cogens norms are not derogable under any circumstances, even for the stated purpose of safeguarding the life of the nation during a public health emergency.
Van Hout, Marie Claire, ‘Using COVID-19 to Address Environmental Threats to Health and Leverage for Prison Reform in South Africa, Malawi and Zimbabwe’ (2023) 15(2) Journal of Human Rights Practice 477–505 Abstract: Health rights of prisoners has long been a neglected political issue in Africa, where over one million people are detained, and almost half of whom are in pre-trial detention. African prisons constitute high-risk environments for communicable disease transmission. During the COVID-19 pandemic, the public health literature on African prison responses focused on preparedness as it related to testing capacity, quarantine practices and personal protective measures to mitigate disease spread. This article combines the right to health as narrowly defined by a prisoner’s right to access non-discriminatory equivalent health care, with a broader focus on assessing normative standards of detention. A comparative legal realist assessment of prison operations in South Africa, Malawi and Zimbabwe during COVID-19 state disaster measures is presented, focusing on the environmental determinants of health (ventilation, minimum floor space, water, sanitation, hygiene and nutrition) in prisons. It reveals the inherent tensions in ensuring a balance between respecting the fundamental rights of people living and working in prisons, ensuring adequate environmental health standards and mitigating disease during public health emergencies. Despite insufficient government resourcing and inadequate coverage of COVID-19 responses, few severe outbreaks were reported. This could be due to lack of testing, reporting or other factors (asymptomatic infection, acquired immunity). Prison congestion and unrest however affected prisoners and staff fearful of hazardous living and occupational health conditions. COVID-19 as public health emergency amplifies the need to address systemic deficits in infrastructure, resourcing and efficiency of criminal justice systems. Policy level and pragmatic recommendations for enhanced human rights practice are outlined.
Van Hout, MC and J Wessels, ‘“Ubuntu” I Am Because We Are: COVID-19 and the Legal Framework for Addressing Communicable Disease in the South African Prison System.’ [2021] International Journal of Prisoner Health Advance article, published online 3 October 2021 Abstract: Purpose: Severely congested and ill resourced prison systems in Africa face unprecedented challenges amplified by COVID-19. South Africa has recorded the highest COVID-19 positivity rate in Africa and on March 15th 2020 declared a national state of disaster. The first prison system case was notified on April 6th 2020. Design/methodology/approach: A legal-realist assessment of the South African prison system response to COVID-19 in the 12 months following initial case notification focused on the minimum State obligations to comply with human rights norms, and the extent to which human, health and occupational health rights of prisoners and staff were upheld during disaster measures. Findings: A legal-realist account was developed, which revealed the indeterminate nature of application of South African COVID-19 government directives, ill resourced COVID-19 mitigation measures, alarming occupational health and prison conditions and inadequate standards of health care in prisons when evaluated against the rule of law during State declaration of disaster. Originality: This legal-realist assessment is original by virtue of its unique evaluation of the South African prison system approach to tackling COVID-19. It acknowledged State efforts, policy making processes and outcomes, and how these operated within the prison system itself. By moving beyond the deleterious impacts of the COVID-19 pandemic on the already precarious South African prison system, we argue for rights assurance for those who live and work in its prisons, improved infrastructure and greater substantive equality of all deprived of their liberty in South Africa.
Veriava, Faranaaz and Nurina Ally, ‘Legal Mobilisation for Education in the Time of Covid-19’ [2021] South African Journal on Human Rights (Advance article, published online 9 December 2021) Abstract: Schools were the first public institutions in South Africa to be closed when the country recorded its initial cases of Covid-19. As a public health crisis quickly extended into an education crisis, government action and decision-making had an inevitable effect on the rights of learners, the impact of which was most severely felt by the poorest and most vulnerable children. While there were several varied responses to government actions, this article discusses three specific case studies that demonstrate the successful role that legal mobilisation by ‘repeat players’ within progressive civil society played in mitigating the impact of the pandemic on the rights of learners. The purpose of this is to catalogue the tactical repertoire employed and the lessons learnt in these legal mobilisation case-studies for further struggles for education reform or, indeed, for broader social reform.
Versveld, Bernadette and Jodi Hardy, ‘COVID-19: Ensure Opportunistic Product Offerings Are Legally Compliant’ (2020) 20(5) Without Prejudice 6 Abstract: Demand for new products to combat COVID-19 infections presents an opportunity for businesses under strain, but they should be aware of advertising, medical and intellectual property restrictions.
Viljoen, IM et al, ‘Contact Tracing during the COVID-19 Pandemic: Protection of Personal Information in South Africa: Review’ (2020) 13(1) South African Journal of Bioethics and Law 15–20 Abstract: Containing the COVID-19 pandemic necessitates the use of personal information without the consent of the person. The protection of personal information is fundamental to the rights that ensure an open and democratic society. When regulations that limit the right to privacy are issued outside of the democratic process, every effort must be made to protect personal information and privacy. The limitation of human rights must be treated as an exception to the norm, and any regulations should be drafted to ensure minimum limitation of rights, rather than to the minimum acceptable standard. The contact tracing regulations included in the COVID-19 disaster regulations include some basic principles to ensure privacy; however, other important principles are not addressed. These include principles of transparency and data security. The envisaged future use of human data for research purposes, albeit de-identified, needs to be addressed by the COVID-19 designated judge appointed under the regulations.
de Villiers, Charl, Dannielle Cerbone and Wayne Van Zijl, ‘The South African Government’s Response to COVID-19’ [2021] Journal of Public Budgeting, Accounting & Financial Management (forthcoming) Abstract: Purpose: This paper provides a critical analysis of the South African government’s response to the COVID-19 crisis and its effect on state finances and budgets. Design/methodology/approach: The paper critically analyses publicly available data. Findings: The South African government’s initial health response was praised by the international community, given the early lockdown and extensive testing regime. The lockdown devastated an already precarious economy, which led to negative social consequences. The initial lockdown delayed the epidemic, but subsequently, the infection rate climbed, requiring new restrictions, suggesting further economic disruption. Government has had to increase its borrowings, while the future tax take is forecast to be significantly reduced, a combination which will lead to a severely constrained public purse for many years to come. This will limit the Government’s ability to address the basic social needs that predated the COVID-19 crisis. Originality: This is one of the first academic papers to critically assess the effect of the South African government’s response to the COVID-19 crisis on state finances and budgets.
Walt, Johan van der, ‘Forensic Practitioners Will Play Key Role in Recovery of South African Economy Post COVID-19’ (2020) 20(6) Without Prejudice 35–36 Abstract: With numerous sectors experiencing financial distress, and companies and individuals facing the increased likelihood of insolvency as a result of the economic disruption caused by COVID-19, forensic practitioners will play a key role in supporting South Africa’s economic recovery.
Welgemoed, Marc, ‘Clinical Legal Education during a Global Pandemic - Suggestions from the Trenches: The Perspective of the Nelson Mandela University’ (2020) 23 Potchefstroom Electronic Law Journal 1–31 Abstract: The Covid-19 pandemic has plunged the world into turmoil and uncertainty. The academic world is no exception. In South Africa, due to a nationwide lockdown imposed by government, universities had to suspend all academic activities, but very quickly explored online teaching and learning options in order to ensure continued education to students. As far as Clinical Legal Education, or CLE, is concerned, such online options of teaching and learning could present problems to university law faculties, university law clinics and law students in general, as CLE is a practical methodology, usually following a live-client or simulation model, depending on the particular university and law clinic. This article provides insight into the online methodology followed by the Nelson Mandela University, or NMU. The NMU presents CLE as part of its Legal Practice-module and conventionally follows the live-client model. As the national lockdown in South Africa required inter alia social distancing, the live-client model had been temporarily suspended by the NMU Law Faculty Management Committee and replaced with an online methodology. The aim of this was an attempt to complete the first semester of the academic year in 2020. This online methodology is structured so as to provide practical-orientated training to students relating to a wide variety of topics, including drafting of legal documents, divorce matters, medico-legal practice, labour legal practice, criminal legal practice, as well as professional ethics. The online training took place in two staggered teaching and learning pathways in line with the strategy of the NMU, underpinned by the principle of ‘no student will be left behind.’ In this way, provision had been made for students with online connectivity and access to electronic devices, students with online connectivity only after return to campus or another venue where connectivity is possible and electronic devices are available, as well as for students who do not have access to online connectivity and electronic devices at all. The reworked CLE-programme of the NMU, planned for the second semester of the 2020-academic year, will also be discussed in this article. The online methodology, followed by the NMU, should however not be viewed as definitive or cast in stone in any way. There might be – and there surely are – alternative methodologies, both online and otherwise, that may provide equally good or even better training to CLE-students during a global pandemic. Alternative suggestions in this regard will also be discussed in this article. It is hoped that this article will provide inspiration, as well as assistance, to university law faculties and law clinics that are struggling to engage with continued practical legal education during the testing and uncertain times brought about by the Covid-19 pandemic. It is further hoped that this article may provide guidance in other difficult and unforeseen future instances that may await CLE. In this regard, it is important to remember that the Fourth Industrial Revolution is rapidly increasing its grip on the world and that CLE will have to adapt to the demands thereof.
Whitear-Nel, Nicci, ‘Remote Justice: South Africa Lags behind Just When COVID-19 Requires It’ (2020) 20(4) Without Prejudice 47–48 Abstract: The COVID-19 pandemic has had a catastrophic effect on so many aspects of our lives – including access to justice.
Wilson, Kerri and Natalie Harten, ‘Be Careful What You Wish For’ (2020) 20(4) Without Prejudice 39–41 Abstract: The scale of the COVID-19 pandemic has led to many businesses facing severe financial difficulties, with boards and shareholders finding themselves in the unfortunate position of having to decide whether to place their companies into liquidation. It goes without saying that this decision is not something to be taken lightly, nor one to be taken in haste.
South Sudan
Akech, Joseph Geng, ‘Constitutional Resilience and Limitation of Rights Under Covid-19 Response in South Sudan’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 179–200 Abstract: This chapter examines how Covid-19 has impacted on constitutional resilience in South Sudan. In particular, it considers how measures have complied or failed to comply with the legal framework on emergency powers and the implications this holds for constitutionalism. This chapter commences with an overview of the country context and then outlines the applicable normative frameworks on emergency powers. The section thereafter discusses the measures adopted and their implications for civil and political rights, as well as certain socio-economic rights. Safeguards, legal and institutional, to such limitations are discussed in the penultimate section. The final section concludes the chapter with key remarks.
Akech, Joseph Geng, ‘Exacerbated Inequalities: Implications of COVID-19 for the Socio-Economic Rights of Women and Children in South Sudan’ (2020) 20(2) African Human Rights Law Journal 584–606 Abstract: This article critically examines measures adopted by the Revitalised Transitional Government of National Unity (TGoNU) in South Sudan to fight the COVID-19 pandemic. It analyses the implications of such measures on constitutionalism and socio-economic rights of women and children. In so doing, it reveals that policy decisions adopted by the RTGoNU exclusively focused on fighting the Coronavirus at the expense of the socio-economic rights of zol meskin (common person). In particular, the decisions lack supportive social protection packages to cushion the low-income households that depend on daily hustling, impacted by the measures adopted. This led to a disproportionate impact on women and children whose rights to livelihoods and education are more adversely affected. Such policy decisions could deepen poverty margins that already exist in South Sudanese society. As schools remain closed, with the exception of primary eight and senior four candidates,1 the hope of more than 2.2 million children who are already out of the education system hangs in the balance.2 In sum, the article demonstrates that the fight against COVID-19 appears to have been won but at a cost of losing the fight against already-rampant socio-economic inequalities. This in part is due to the fact that, on the one hand, measures adopted to fight the pandemic appear to be successful at flattening the curve as revealed by the cumulative numbers of patients and deaths but, on the other, such policies have arguably exacerbated the socio-economic conditions of the poor who already live on the brink of famine as warned by the United Nations agencies in keeping with the Integrated Food Security Phase Classification reports.3 The article thus recommends that the government and policy makers should consider three critical lessons for the future: (a) strengthening social welfare sector to protect vulnerable households from sudden onsets; (b) enhance disaster risk and preparedness capacities to effectively deal with pandemics in a way that protects the most vulnerable people; and (c) strengthen democratic governance and rule of law as catalysts for well-managed emergency responses.
Sudan
Babiker, Mohamed Abdelsalam, ‘COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism’ (2021) 65(S2) Journal of African Law 311–331 Abstract: This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan’s transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.
Lumley-Sapanski, Audrey et al, ‘Exacerbating Pre-Existing Vulnerabilities: An Analysis of the Effects of the COVID-19 Pandemic on Human Trafficking in Sudan’ (2023) 24(3) Human Rights Review 341–361 Abstract: COVID-19 has caused far-reaching humanitarian challenges. Amongst the emerging impacts of the pandemic is on the dynamics of human trafficking. This paper presents findings from a multi-methods study interrogating the impacts of COVID-19 on human trafficking in Sudan—a critical source, destination, and transit country. The analysis combines a systematic evidence review, semi-structured interviews, and a focus group with survivors, conducted between January and May of 2021. We find key risks have been exacerbated, and simultaneously, critical infrastructure for identifying victims, providing support, and ensuring accountability of perpetrators has been impeded. Centrally, the co-occurrence of the pandemic and the democratic transition undercut the institutional and governance capacity, limiting the anti-trafficking response and exposing already vulnerable groups to increased risks of human trafficking. Findings point to increased vulnerabilities for individuals with one or more of the following identities: migrants, refugees, females, and informal labourers.
Suryani, Reni, ‘Preserving Legal Protection for Sundanese (Sunda Naga and Baduy Kenekes Tribes) Wisdom Amidst Modernization in the Face of COVID-19 Challenges’ (2024) 2(2) Sinergi International Journal of Law 108–119 Abstract: The COVID-19 pandemic has entered various countries around the world, and Indonesia is no exception to this disaster. As a country with diverse cultures, many Indonesians have used local wisdom to face the COVID-19 pandemic. This research aims to understand the government’s protection of the Baduy Tribe in Kanekes in facing the COVID-19 pandemic and the existence of the Baduy Tribe in Kanekes in facing the dimensions of modernization and the COVID-19 pandemic. The existence of this indigenous community is regulated in the 1945 Constitution of the Republic of Indonesia Article 18B Paragraph (2). This research uses empirical juridical research, which is a study that examines and analyzes the legal behavior of individuals or the Baduy tribal community in relation to the law. The data sources used are primary data obtained through observation and interviews with informants from the Baduy Tribe and the Sundanese Tribe in Kampung Naga. The results show that they overcome the COVID-19 pandemic through their well-preserved wisdom and culture, forming a strong mentality that allows the existence of life in Kampung Naga and the Baduy Tribe to continue without being affected by COVID-19.
Tanzania
Hyera, Mozart, ‘The Dialogue on the Consent to the COVID-19 Vaccination in Tanzania: Legal Perspective’ (SSRN Scholarly Paper No ID 3944755, 18 October 2021) Abstract: It has been over a year and half now ever since the world was struck by the deadly virus, coined as COVID-19. It’s of no dispute the virus took a lot from us worse of all death of our loved ones and brought us a new and ‘unprecedented’ lifestyle. But even after such a disastrous pandemic, the world scientific society did not back down, most states tireless employed their experts to work tirelessly on finding if not a cure then a vaccine that would help reduce or control the rate of deaths that kept on occurring. Fortunately, as of 30th August 2021, the world through World Health Organization approved a total of 7 vaccines to include Janssen (Johnson & Johnson), Moderna mRNA-1273, Pfizer/BioNTech, Oxford/AstraZeneca, CoronaVac, BBIBP-CorV (Vero Cells).Tanzania did not fall short on welcoming the use of vaccine. On July 24th 2021, Tanzania’s Health Minister Dorothy Gwajima received the first consignment of doses donated from the United States3. Led by the President Samia Suluhu Hassan, the state with a population of 62 million has only received 1,058,450 doses of the Johnson & Johnson vaccine. The policy however is as such that the first batch of COVID-19 vaccines will target frontline health care workers given their high exposure to COVID-19, the second being elderly and people with co-morbid conditions who are at high risk of developing severe illness if exposed to the COVID-19 virus.4Even after such a relief, the government insisted that the vaccine is to be taken out of free will and coerced though this has raised eyebrows on the safety of the vaccines administered. That not being enough, the government through the Ministry of Health accompanied with instruction on the preliminaries of the shot, issued an exemption clause, or one would say a warning statement or disclaimer before one opts to administer the vaccine. Though the objectives might be good, questions on the credibility of the vaccines have originated from the ‘escape from liability’ clause to be signed before administering the vaccine. This paper examines the nature of exemption clauses and it legality in relation to the ongoing debate of the statement. :
Ratemo, Tom Junior, ‘Intensifying Legal Protection against Human Rights Violations in the Covid-19 Era : A Case Study of Kenya, Uganda and Tanzania’ (2020) 7(2) Journal of Comparative Law in Africa_ _Abstract: The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.
Sambu, Eric Kibet, ‘Annual General Meetings in the Era of COVID-19 Pandemic: Law and Practice in Tanzania’ (2022) 48(2) The Eastern African Law Review 116–148 Abstract: COVID-19 is a pandemic that is currently ravaging the world, with unprecedented disruptions being witnessed. Many governments have imposed restrictions on movement and several measures to contain its spread, including social and physical distancing. This has made it hard to hold conventional physical meetings. Companies are still expected to comply with the provisions of the law and company’s constitution, regarding holding company’s annual general meetings to transact business therein. This paper reviews the provisions of the Tanzania law regarding holding of such meetings and hence the practicable options amidst the pandemic. It finds that available options include postponing the accounting period and hence the date of AGM, resolutions by circulation, applying to the Registrar to alter mode of conducting AGM. This study establishes that the viable option is to hold virtual meetings and recommends that companies review articles to accommodate this. Tips on holding successful virtual meetings are given.
Solomon, Eva, ‘Cybercrimes Law and Citizen Journalism Clampdown During the Covid-19 Pandemic in Tanzania’ in Carol Azungi Dralega and Angella Napakol (eds), Health Crises and Media Discourses in Sub-Saharan Africa (Springer, 2022) 219–236 [OPEN ACCESS BOOK] Abstract: This chapter explores citizens’ use of social media during the Covid-19 pandemic in Tanzania against the backdrop of the restrictive Cybercrimes Act 2015. Guided by Uses and Gratifications Theory and through Grounded Theory as a method of inquiry for data collection and data analysis, the study found that, of the 60 citizens interviewed, 75 per cent supported the Cybercrimes Act 2015 as a relevant law but acknowledged that the same Act limits the construction and dissemination of their Covid-19 messages. Only 18.4 per cent of respondents trusted information posted by ordinary citizens while 81.6 per cent trusted information from verifiable sources. Data analysis further reveals a weak citizen journalism practice occasioned mainly by six factors: limited freedom of expression, poor knowledge of Cybercrimes Law, citizen journalism values underutilisation, poor social media literacy skills, and limited message construction and dissemination. Nonetheless, respondents revealed that social media remained the most popular platform on which citizens discuss Covid-19 preventive measures amidst reduced social interactions. Equipping citizens with social media literacy skills was found to be important to reduce misinformation and disinformation. The chapter calls for a review of Section 20 of the Cybercrimes Act 2015 to enable citizens, especially during pandemics, to seek and impart information more effectively, devoid of fear of repercussions.
Tunisia
Ben Amar, Wiem et al, ‘Criminal Medical Liability in the Context of Covid-19 Pandemic’ (2020) 98(5) La Tunisie Medicale 334–342 Abstract: The COVID-19 infection causes to medical community many difficulties worldwide. In addition to its therapeutic problems, it can generate situations with high medico-legal risk to doctor who can see his criminal medical liability engaged. In fact, in Tunisia, this new infection imposes many specific legal obligations. Some of these obligations have recently been introduced, therefore still little or not known by doctors, despite the need for them to comply with. In this paper, we propose to analyse the circumstances of medical practice in Covid-19 pandemic period , which risk to engage the doctor’s criminal medical liability, and to set out the sanctions incurred, in order to protect health professionals against the specific legal risk of this emerging disease. :
Guetat, Meriem and Meriem Agrebi, ‘From Democratic Exception to State of Exception: Covid-19 in the Context of Tunisia’s State of Law’ [2021] Middle East Law and Governance (advance article, published 26 October 2021) Abstract: Through an analysis of the early legal and institutional response to Covid-19 in Tunisia, this article demonstrates that the narrative of Tunisia’s democratic exceptionalism following the 2011 revolution is not translated into a liberal legal practice but is instead upheld by an authoritarian rationale that serves the role of a formal channel that legitimizes power discourse. Specifically, this article focuses on what the state of exception, which was declared during the ongoing state of emergency, reveals about the various uses of law in Tunisia. It argues that the state of emergency has become the norm to the Tunisian way of governance post-2011, allowing for the survival of past authoritarian practices where the legal apparatus is used and deployed as a tool of policing and control.
Uganda
Achan, Martha Isabella et al, ‘COVID-19 and the Law in Uganda: Development and Application of the Public Health Act to Control the Pandemic, 2020-2021’ [2022] BMC Public Health: In Review (preprint, published online 8 March 2022) Abstract: Despite the discovery of vaccines, control and prevention efforts relied on non-pharmaceutical interventions (NPIs) for the novel Coronavirus disease 2019 (COVID-19). This article describes the process of development and application of the public health law in prevention and control of the COVID19 pandemic in Uganda.
Baruga, Edward, ‘An Assessment of Digital Rights and Freedoms Amidst the COVID-19 Pandemic and the 2021 General Elections. A Case Study of Uganda’ (SSRN Scholarly Paper No ID 3897261, 1 March 2021) Abstract: The digital world is one of the fastest developing sections of the technological based being observed with these ever developing sectors mainly focusing on the periods of the COVID-19 pandemic and the 2021 General Elections in Uganda. In this era of fast assess whether digital rights and freedoms are being respected in areas such as these, mainly focusing on the COVID-19 pandemic and the 2021 General Elections. compositions world-wide, with a recent breakthrough in the quantum computing world the digital space is still on arise thus a need to assess whether digital rights are Internet of Things, so with all this at the back of the mind there is great need to internet speeds sponsored by 5G connectivity, quantum technology, Big Data and the more so in a country like Uganda where such technology is still or yet to develop.
Kabumba, Busingye, ‘The 1995 Constitution and COVID-19’ [2020] LawAfrica_ _Abstract: The Coronavirus disease (Covid-19) has fundamentally challenged many aspects of international and national life that we had long taken for granted. As at current count, over one million people around the world have tested positive for Covid-19, with over sixty-five thousand deaths thus far. In Uganda, fifty-two people have so far tested positive, and the government has already taken extraordinary measures to try to ensure that this figure remains low. In the midst of this national and global crisis, it might appear insensitive – perhaps even distasteful - to reflect on the legal questions arising in this moment. However, it is possibly precisely at such a time that we should be mindful of, and cling to, the safety and guidance to be found in law – and, in particular, the Constitution. It is in this spirit that this short piece reflects upon the extent to which the government of Uganda can effectively respond to the challenge posed by Covid-19, while respecting and complying with the safeguards stipulated under the 1995 Constitution. :
Kakooza, Anthony Conrad, ‘Data Collection and Management in the Covid-19 Era: A Legal Analysis of Ugandan Legislation’ (2021) 10(1) The Uganda Living Law Journal 1–20 Abstract: This article is an inquiry into the significance of database management viewed through the lens of COVID-19 infected persons. The article attempts at assessing the nature of the treatment given to data that was captured from cross-border migrants into Uganda during the pandemic in the course of the government’s attempts at controlling the further spread of the disease. The control measures instituted by many countries over the spread of COVID-19 were mainly premised on generating and utilizing data on migrations of persons from one place to another. The article highlights shortfalls in previous studies undertaken in the area of data collection and management and goes on to scrutinize the legislative structure in Uganda related to data collection and management. It then sums u p with recommendations on improving the legislative shortfalls.
Kasimbazi, Emmanuel and Shubbam Pandey, ‘Legal and Regulatory Measures and Responses to Prevent and Control COVID-19 in Uganda’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 67–84 Abstract: Uganda adopted different legal and regulatory approaches to prevent and control the COVID-19 pandemic. Measures included Presidential Directives, Ministry of Health rules, guidelines and the responses, establishment of institutions such as the National Task Force (NTF) and District Task Forces (DTF) Force, and allocation of funds. These measures are included indifferent instrumentssuch as statutory instruments, which empower government institutions to contain the COVID-19 situation in Uganda. They also set out conditions to be complied with by individuals and institutions. This article aims at mapping out the legal and institutions’ approaches and assesses their effectiveness in preventing and controlling COVID-19 in Uganda.
Khisa, Moses and Sabastiano Rwengabo, ‘Militarism and the Politics of Covid-19 Response in Uganda’ (2024) 50(4) Armed Forces & Society 1118–1149 Abstract: Within the broader context of securitized responses to Covid-19 globally, Uganda experienced an oversized military role, ranging from law-and-order and lockdown enforcement, to managing food-relief supplies, medical operations, and partisan political repression. What explains this excessive militarization? To address this poser, the article draws on secondary sources and key-informant interviews to test the hypothesis that military involvement in pandemic responses depends on pre-pandemic militarism. The findings reveal direct links between pre-crisis militarism and Covid-19 responses, contrary to the view that exceptionality and novelty of Covid-19 informed overly militarized responses. Through pandemic framing and institutional morphing, pre-pandemic militarism foregrounded military roles because Covid-19 provided Uganda’s ruling elites with a public health pretext to heighten militaristic rule, clutch the political arena in the context of elections, and deepen military presence in civilian public health realms. This excessive militarization of public health seriously impacts civil–military relations, specifically command and control, reporting and accountability, and resources management.
Lwanga, Kabazzi Maurice, ‘Legal Aid in the COVID-19 Pandemic: Which Way for Public Interest Advocacy?’ (SSRN Scholarly Paper No ID 3942553, 14 June 2021) Abstract: More people than ever need legal aid services. But the corona pandemic has hit legal aid funding severely. On 11th March, 2020, the World Health Organization (WHO) declared the Novel Coronavirus (COVID-19) disease outbreak a global pandemic.The government measures to the COVID-19 such as the travel bans and suspension of court and legal activities will potentially result in decline of access to justice for the indigent and worsen the Rule of Law in Uganda. Uganda’s ranking on Rule of Law is declining with the minimal nongovernmental checks and the low access to justice for the indigent. Therefore, Legal aid in the COVID-19 pandemic needs to be revisited. Belatedly, lawyers were classified as ‘essential services’ during the pandemic. There is concern that legal aid may die out and access to justice for the indigent will become problematic during the acute lockdowns among other Government control measures. This article provides insights into other nongovernmental checks for public interest advocacy to promote Rule of Law during pandemics in the face of declining legal aid.
Nanima, Robert Doya, ‘Constitutional and Human Rights Issues Arising from Covid-19: Uganda’s Youth in Context’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 283–309 Abstract: The announcement of a period of disaster under Uganda’s Public Health Act led to the adoption of various restrictions to curb the spread of Covid-19. The country’s youth were significantly affected, given that more than 75 per cent of the population of approximately 45 million are under the age of 30 and burdened with unemployment, poverty and lack of education. This chapter evaluates the response to the pandemic by Uganda’s executive, Parliament and judiciary, and analyses its implications for constitutionalism.
Nanima, Robert Doya, ‘A Right to a Fair Trial in Uganda’s Judicature (Visual-Audio Link) Rules: Embracing the Challenges in the Era of Covid-19’ (2020) 46(3) Commonwealth Law Bulletin 391–414 Abstract: The application of the Uganda Judicature (Visual-Audio Link) Rules does not contextualise the complete protection of an accused’s right to a fair trial during emergencies. A contextualisation of the right to a fair trial in international law and under Uganda’s domestic law is done. An evaluation of the application of the Visual-Audio Rules in the context of its objectives and circumstances follows. The contribution proposes an accused-centred approach in the application of the Visual-Audio Rules. A conclusion and recommendations follow.
Nkuubi, James, ‘When Guns Govern Public Health: Examining the Implications of the Militarised COVID-19 Pandemic Response for Democratisation and Human Rights in Uganda’ (2020) 20(2) African Human Rights Law Journal 607–639 Abstract: The article is premised on the hypothesis that the Uganda Peoples’ Defence Force (UPDF) and the attendant auxiliary forces are not an ideal force for domestic deployment in contending with public health pandemics such as COVID-19. The UPDF has been the main architectural tool that has been deployed by the National Resistance Movement party, a former guerilla movement, to perpetuate militarisation in the country for the past 30 years. The conduct, power, authority and prominent position accorded to the UPDF in the management of COVID-19 and the enforcement of the prevention measures laid bare this reality. Thus, unlike in other jurisdictions where the militaries were deployed because of their superior capability to adapt and provide extra and immediate professional services to support the civilian authorities, in Uganda this deployment was different. It was informed by the long-held and widely-documented belief by the President of Uganda, Museveni, that the UPDF, which developed from his personal guerrilla army of the National Resistance Army (NRA), only holds a legitimate vision for the country and is far more reliable. The COVID-19 pandemic, therefore, was an opportunity to continue the deliberate build-up and normalisation of the infiltration of the military in what have hitherto been spheres of operation for the civil and public servants. Thus, a critical question arises as to whether the primary motivation factor for the UPDF deployment was political, to accentuate the presidency of Museveni in power through militarisation. The question is also whether any positive harvests from the deployment of the military in the fight against COVID-19 were unintended consequences and, if they did materialise, how they were used to further glorify the centrality of the military in dealing with societal crises, further entrenching militarism. The article concludes with some recommendations emphasising the need for accountability – more so, parliamentary oversight in the deployment of the military in such situations to counter a breach of rights and freedoms. Additionally, this would check the current trend of the executive having the exclusive power to deploy the military, making it susceptible to hijacking and eventual politicisation and militarisation.
Ratemo, Tom Junior, ‘Intensifying Legal Protection against Human Rights Violations in the Covid-19 Era : A Case Study of Kenya, Uganda and Tanzania’ (2020) 7(2) _Journal of Comparative Law in Africa_ Abstract: The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.
Séverin, Marianne and Hannah Muzee, ‘COVID-19 Entrepreneurs: Corruption and the Violation of the Rights of Health and Development in South Africa and Uganda’ in Jędrzej Skrzypczak and Oscar Pérez de la Fuente (eds), Lessons for Implementing Human Rights from COVID-19 (Routledge, 2024) Abstract: While the COVID-19 pandemic caught many countries and governments unawares, some suffered more than others. In Africa, with a highly inefficient public service and dysfunctional welfare state, African governments had to act fast to prevent a high death toll. South Africa implemented a 23-day lockdown right after the first infection was reported, 18 days before Italy. The United States, having, had one of the world’s most significant casualties, introduced COVID lockdowns in March 2020. Screening at ports of entry was instituted for those coming into the country, where travellers were required to present a negative PCR test that was not older than 72 hours and subsequently proof of vaccination. In addition, the government intensified the distribution of information to private and public healthcare workers and the public about the pandemic (Villiers et al., 2020). Furthermore, a National State of Disaster was declared on 15 March 2020 to not only enable the government of South Africa to slow down the infection rate but also ease the pressure on the healthcare system. Since the population was not economically active, several strategies were introduced to alleviate the suffering of the people, such as the R350 social relief of Distress Grant, the COVID-19 Temporary Employer/Employee Relief Scheme (TERS). It aimed to provide wage support to workers, and other relief schemes to small businesses, including the extension of validity of vehicle and driving licenses (South African Government, 2022).
Zambia
Phiri, Christopher, ‘Covid-19 and Zambia’s Constitutional Dilemma’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 145–178 Abstract: Desperate times call for desperate measures. This holds true in times of public emergencies. Constitutionalism and the rule of law, however, impose limits on how the powers of government can be duly exercised even in the face of public emergencies. Focusing on the period March 2020 to March 2021, this chapter examines the response of the Zambian government to the Covid-19 pandemic through the lens of constitutionalism and the rule of law. It reveals that the response was exclusively executive-driven. Several measures which the executive introduced to contain the spread of Covid-19 had no legal basis, and enforcement was arbitrary. Parliamentary and judicial oversight was also largely absent. This saw apparent violations of human rights go without redress. This chapter ends with some general observations on what could be learnt from the experience during the period under examination, to facilitate constitutional resilience in the future.
Zimbabwe
Chadambuka, Zvikomborero, ‘The Informal Economy and the First 100 Days of the Pandemic Policy in Zimbabwe’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 373–397 Abstract: Due to a combination of neoliberal economic restructuring programs carried out during the 1990s and chronic economic challenges since the turn of the millennium, Zimbabwe has a large informal economy. The COVID-19 pandemic and policy measures taken to combat the pandemic had particularly marked negative effects on people working in the informal economy. The Zimbabwean government largely used formal financial sector channels in distributing COVID-19 mitigation resources to the public. Such channels tended to exclude the informal economy. The COVID-19 policy response also reinforced a tendency to allocate public resources to politically-linked actors. There was direct discrimination against the informal economy through destruction of places of business used by those working in the informal economy and a COVID-19 regulatory framework that explicitly barred them from economic activity. More generally, some pandemic policy choices appeared to be motivated by the government’s desire to consolidate power rather than public health concerns.
Chidhawu, Tinotenda, ‘Zimbabwe’s Response to Covid-19 and Its Socio-Economic Impact’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 371–402 Abstract: This chapter presents an overview of the situation regarding Covid-19, and discusses the measures adopted by the Zimbabwean government to curb the spread of the pandemic. The Siracusa Principles, the General Comments of the Human Rights Committee and other human rights bodies provide the guiding standard in assessing the kind of measures that were adopted, the legality of the containment measures, the enactment of new laws or the use of existing legislation to address Covid-19, the constitutionality thereof, and the content of the law and how it has impacted on human rights. This chapter also discusses court decisions concerning the challenges to some of the measures adopted by the government, after which it examines the socio-economic impact of the measures taken by the government.
Mutondoro, Farai et al, ‘Resource-backed Loans, COVID-19 and the High Risk of Debt Trap: A Case Study of Zimbabwe’ in Daniel D Bradlow and Magalie L Masamba (eds), COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) 303-330 *[OPEN ACCESS BOOK]* Introduction: Currently, the COVID-19 pandemic undoubtedly is the greatest threat to human well-being and the global economy. It has deep impacts not only on growth rates and commodity prices but also on countries’ sovereign debt. While other indebted countries have received debt relief from the International Monetary Fund (IMF) and the Group of 20 leading economies (G20) resulting in them being able to access new loans to mitigate against the effect of the pandemic to their economies, Zimbabwe has not received much.
Pfumorodze, Jimcall, ‘Towards Utilisation of Domestic Resources in Settling Zimbabwe’s Sovereign Debt’ in Daniel D Bradlow and Magalie L Masamba (eds), COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) 331-351 *[OPEN ACCESS BOOK]* Introduction: This chapter focuses on public external debt. This refers to loans and borrowings that are made by creditors located outside the country’s borders in foreign currency with a view to supplementing domestic financial resources.6 It also includes government guaranteed loans that are taken by parastatals, private entities such as banks or even individuals. Thus, public and publicly-guaranteed external debt (PPGED) refers to both debts to foreign creditors taken by the government itself and those the government has guaranteed. This chapter, therefore, seeks to evaluate the Zimbabwean strategies with which Zimbabwe has come up in its sovereign debt restructuring. It will start by giving a brief background on how Zimbabwe has managed its sovereign debt. This is followed by a discussion on sovereign debt management strategy and plans that were implemented in Zimbabwe between 2010 and 2020 and an examination of the current challenges. It will analyse a set of proposals that have been suggested to date and test their suitability as responses to the current debt crises in the light of the challenges posed by the COVID-19 pandemic.
Saki, Otto, ‘Data Protection in Zimbabwe with Reference to the Covid-19 Pandemic and International Law’ (2024) 27 Potchefstroom Electronic Law Journal 1–38 Abstract: The corona virus that caused the COVID-19 disease defied geographical boundaries, spreading faster than the measures to contain its transmission. The processing of personal health-related data became widespread as a measure to respond to the pandemic. This triggered new concerns about the possibility of there being a data crisis. Individuals suspected to be infected by COVID-19 were forced to undertake mandatory testing that involved the collection of health-related data. To limit the spread of the disease, the collection of personal data extended to secondary contacts. Personal health-related data are very prone to abuse, and this data included secondary data inconsistent with initial collection purposes. Admittedly, such risks are not new. Prior to the pandemic, health-related data were processed through electronic health (e-health) platforms. The health-related data processing methods during the pandemic were insufficient to meet the data protection principles of consent, transparency, purpose and storage, potentially violating the right to privacy. Globally, expectations are that countries should have data protection laws informed by established principles regulating the processing of personal data. While, Zimbabwe had not enacted the Cyber and Data Protection Act (CDP Act), which lists some of the data principles, this paper relies on existing laws to determine whether Zimbabwe is still abiding by constitutional and international human rights standards in protecting personal data privacy. The paper examines the development of data principles and their application in Zimbabwe in respect of health-related data protection during the pandemic. The paper 1) analyses the existing laws and their protection of personal health-related data; 2) explores the incorporation of data principles in COVID-19-related responses including in national laws as informed by international laws; and 3) highlights the gaps in both law and practice as they relate to the handling of personal health-related data in Zimbabwe during the pandemic. The paper concludes that even if the existing laws on data privacy were not comprehensive and even if the CDP Act came too late, the global regulations, the sectoral laws and other guidance accessible to Zimbabwe in responding to the pandemic would have sufficed to avert a data pandemic during the health pandemic and allowed Zimbabwe to be compliant with international data protection standards.
Taruvinga, Gwinyai Regis, ‘COVID-19 and Governance in Zimbabwe’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions) Abstract: In this essay, I draw on the International Monetary Fund (IMF)’s definition of governance as being a ‘broad concept covering all aspects of the way a country is governed, including its economic policies and regulatory framework, as well as adherence to the rule of law.’ Zimbabwe’s polarized political culture is crucial to understanding its politics. This polarization has adversely affected Zimbabwe’s ability to deal with COVID-19. Thus, when Makamba succumbed to COVID-19, his family issued a strongly worded statement that spoke to the challenges that the family went through in trying to receive treatment. The family’s statement observed that a visit to a hospital in Zimbabwe would be tantamount to a death sentence.
Van Hout, Marie Claire, ‘Using COVID-19 to Address Environmental Threats to Health and Leverage for Prison Reform in South Africa, Malawi and Zimbabwe’ (2023) 15(2) Journal of Human Rights Practice 477–505 Abstract: Health rights of prisoners has long been a neglected political issue in Africa, where over one million people are detained, and almost half of whom are in pre-trial detention. African prisons constitute high-risk environments for communicable disease transmission. During the COVID-19 pandemic, the public health literature on African prison responses focused on preparedness as it related to testing capacity, quarantine practices and personal protective measures to mitigate disease spread. This article combines the right to health as narrowly defined by a prisoner’s right to access non-discriminatory equivalent health care, with a broader focus on assessing normative standards of detention. A comparative legal realist assessment of prison operations in South Africa, Malawi and Zimbabwe during COVID-19 state disaster measures is presented, focusing on the environmental determinants of health (ventilation, minimum floor space, water, sanitation, hygiene and nutrition) in prisons. It reveals the inherent tensions in ensuring a balance between respecting the fundamental rights of people living and working in prisons, ensuring adequate environmental health standards and mitigating disease during public health emergencies. Despite insufficient government resourcing and inadequate coverage of COVID-19 responses, few severe outbreaks were reported. This could be due to lack of testing, reporting or other factors (asymptomatic infection, acquired immunity). Prison congestion and unrest however affected prisoners and staff fearful of hazardous living and occupational health conditions. COVID-19 as public health emergency amplifies the need to address systemic deficits in infrastructure, resourcing and efficiency of criminal justice systems. Policy level and pragmatic recommendations for enhanced human rights practice are outlined.
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