Ethiopian Human Rights Commission (EHRC)points out what it calls inconsistent practices with State of Emergency declaration and regulations. It makes recommendations.
By Bernabas Shiferaw
May 28, 2020
The EHRC has released an analysis of the declaration of a state of emergency (SoE) by the Ethiopian government to prevent the spread of COVID-19. EHRC’s analysis assesses the declaration based on international human rights standards and the FDRE constitution. Accordingly, it has identified several inconsistencies of the declaration and made recommendations on how to correct them.
The document appreciates the constitutionality of the declaration (on the whole), the establishment of an Inquiry Board, the fact that it is led by civilian officials, the government’s willingness to ease or lift the SoE based on evaluation of circumstances and the concerted effort of the government to control the pandemic.
However, EHRC has identified several provisions that violate either international human rights standards or the FDRE constitution. The first of these is the fact that crimes and restrictions listed are sweeping and vaguely defined, and the imposition of the same penalty of up to three years imprisonment and a fine up to Birr 200,000 for the wide range of crimes defined therein.
“The State of Emergency Regulation has a list of 41 criminal acts and omissions without clearly defining the elements of some of the crimes in precise terms and furthermore it imposes the same severe punishment of potentially up to 3 years imprisonment provided under Article 6(1) of the State of Emergency Proclamation for offences ranging from an apparent mere infraction to obstruction of the public health emergency activities. Therefore, a long list of actions and omissions without precise terms of the elements of every offence and an imposition of the same type of punishment regime for different types of offences is inconsistent with international human rights standards.”
The commission has also objected to the criminalization of casual practices, like handshakes, by the declaration. It maintains such issues are a matter of public education and should be handled as such. And if sanctions are necessary, they should be civil ones, such as community service, and not criminal.
Additionally, the Commission has also identified the provision for mandatory reporting in the declaration as one that violates the right to privacy and confidentiality, exposing patients and vulnerable groups to stigma and discrimination.
Another aspect of the declaration identified by the commission to be inconsistent with international human rights principles is the overly broad expropriation powers it gives to the government. Although such temporary expropriation powers may be necessary in such times, this specific provision “lacks specific guidelines or details regarding questions that arise in the application of expropriation powers including criteria for expropriation of private property, the issue of compensation and the temporal scope of the expropriation. Such an overly broad power of expropriation of private property also risks abuse particularly in a context of weak law enforcement capacity.”
The Commission has recommended that the government repeals or substantially amends (in a way that narrowly defines the expropriation power) the article that contains this provision.
It also raised a concern that the right to freedom of expression may be impinged by article 3(27) which prohibits dissemination of any information that causes “terror and undue distress among the public” and article 4(10) which requires that information provided by media outlets about COVID- 19 should not be exaggerated or understated and should not be prone to cause panic and terror among the public.
These articles, according to the Commission, “have a chilling effect on freedom of expression and media freedom.” Moreover, there is no need for such provisions in the declaration as concerns relating to the media could be effectively addressed by the recently adopted Hate Speech and Disinformation Prevention and Suppression Proclamation. The commission has recommended that these articles should be either repealed or substantively amended in conformity with international standards.
Referring to Article 6(1) of the Regulation which provides that “the criminal procedure code and criminal procedural provisions in other laws are suspended,” the Commission raises its concern that such wholesale suspension of procedural rules unduly impinges on procedural guarantees recognized under the constitution and international human rights law.
The report reads, “The wholesale suspension of procedural guarantees is hardly a necessary and proportionate measure. In fact, some procedural guarantees may be considered so fundamental that their curtailment may not be justified under any circumstances.”
The commission has also objected to Article 6(4) of the Regulation providing for the possible suspension of civil lawsuits and has recommended that government repeals it or narrowly define its provisions “to avoid unreasonable restrictions on the power of courts to scrutinize emergency powers and to continue to handle urgent civil cases such as family maintenance allowance, temporary injections, forced eviction and dismissal from work.”
The final issue the Commission has raised for reconsideration is the delegation of the executive by the parliament to decide on specific emergency measures and suspension of rights. According to the Commission, this is a problem from the perspective of the principle of parliamentary oversight of emergency powers.
“The approach followed by parliament in this regard in terms of giving a blank check to the executive on the detailed emergency measures raises concern in light of Article 93 (2) of the Constitution on parliamentary oversight of emergency powers. Arguably, a legislative approach consistent with the logic of parliamentary oversight would have been to review and approve the detailed emergency powers of the executive as part of the state of emergency declaration as opposed to a controversial distinction between the emergency declaration and the emergency regulations.”
The Commission has emphasized regular meetings by the parliament to oversee the operations of the executive during the emergency.
This analysis by the commission has already been submitted to the Committee of Ministers in charge of executing the SoE and the inquiry board established to monitor the execution before becoming public. The president of the board and three Ministers of the federal government have objected to EHRC’s recommendations on the declaration.
The Board claims that these recommendations and other reports by the Commision concerning human rights violations under SoE are inappropriate as such a mandate is exclusively granted to the Board. The chairman of the Board, Mr. Tesfaye Daba, described these reports of human rights violation from EHRC as “obstacles” to the Board and “challenges” to its authority. According to him, 80 prevent of the complaints that the board has received are calls for a more effective execution of the declaration and this reflects that no human rights violations are being committed.
The Attorney General, Mrs. Adanech Abebe, on the other hand, while acknowledging EHRC’s mandate to report human rights violations on the ground, said that it has no mandate to criticize the declaration itself. The Deputy Prime Minister, Mr. Demeke Mekonnen, and the Minister of Peace, Mrs. Mufariat Kamil, also expressed dismay at these recommendations coming from the Board.
Asked about this issue, EHRC Commissioner Daniel Bekele (PhD) told the Reporter that the officials are mistaken concerning the mandates of the Commission. He said that they (the commission and the Ministers) will and are trying to resolve the issue through discussions.
He also said such collisions with the executive are part of the job and he had expected them when he took the position. “However,” he said, “we will always tell them what they should hear, not what they want to hear.”
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