Moses Magadza

WINDHOEK – A widely-acclaimed judge, Professor Justice Oagile Bethuel Key Dingake, has implored legislative functionaries in the SADC region to “ensure the observance of parliamentary oversight and scrutiny, democratic accountability, transparency, legitimacy” at all stages in the legislative process as the world grapples with Covid-19.

Dingake is a former Judge of the High Court of Botswana. He is now a Justice of the Residual Special Court of Sierra Leone, the Supreme Court of Papua New Guinea and the Court of Appeal of Seychelles. He made the call when he virtually addressed Clerks of national Parliaments affiliated to the SADC Parliamentary Forum last week. The Clerks came together to share lessons on the impact of Covid-19 pandemic and the role of Parliaments in responding to national disasters.

The intellectually charged judge called, also, for “observance of the rule of law, evidence-based law-making, the principles of rational law-making, scientific literacy of law-makers, proper separation of powers, and respect for human rights and the constitutional order”.

He reminded his audience that “the duty of Parliamentary Clerks is to assist Parliament, its officers and Members of Parliament, to fulfil their constitutional and representative functions by rendering non-partisan, enlightened and authoritative procedural advice and guidance” during national disasters.

He noted that while it may be acceptable for national governments to take necessary drastic measures in response to extraordinary and existential crises “under international human rights law, which most countries have adopted, everyone has the right to ‘the highest attainable standard of physical and mental health’”.

However, and in reference to the raging COVID-19 pandemic, Dingake observed that the crisis had exposed strengths and weaknesses of legislatures and legislative procedures in the SADC region and beyond.

He noted that bad examples were manifested in “magnified – knee-jerk legal reactions, executive dominance, lack of parliamentary oversight, poor democratic input, populist rather than effective laws, ignorance of science and a general disregard for the proper constitutional order”.

For him these tendencies may be explained by the presence of “democratic culture or absence thereof – including fidelity to the rule of law” and he noted that, instead, “in times of national crisis we need the Rule of Law most – a legislative branch that does not forego its oversight role”.

Quoting the Secretary General of the United Nations, Dingake emphasised that while the pandemic impacted “several fundamental rights” it is important to note that “human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods”.

He also emphasised that despite the extraordinary circumstances of national disasters and responses thereto, “international human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it”.

The legal expert also argued that human rights law requires that restrictions instituted during existential crises be “reasonably justifiable in a democratic society, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective”.

Furthermore, he noted that the Siracusa Principles adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee general comments on state of emergencies and freedom of movement, “permit governments to restrict rights in so far as such restrictions may be necessary or reasonably justifiable in a democratic society”.

Based on these principles thus, he emphasised the need to limit the duration of national emergency measures and ensure that any restrictions of rights must not disadvantage “specific populations or marginalised groups” or “abused to target particular groups, minorities, or individuals”.

Dingake gave the example of countries and governments that he said “failed to uphold the right to freedom of expression, taking actions against journalists and protestors in a manner that is highhanded, disproportionate and plainly unlawful”.

He also noted that periods of national disasters tend to allow the Executive and medical-scientific experts to assume more powerful roles at the expense of the legislature with the former transforming from being a source of “decision-making input into decision-maker”.

In reference to the ongoing pandemic, Dingake observed that since “slowing down or stopping the spread of COVID-19 requires measures that have a profound impact on the lives of citizens, the economy and society as a whole…more and not less parliamentary scrutiny” is required.

He underscored that, “in times of crisis, parliaments have a duty to ensure that all measures taken result in enhanced protection and support of every person – especially the most vulnerable”.