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.
