A Reflection on The Nation in a State of Emergency – What is the State of Emergency?

Lesego Nswahu Nchunga | Tuesday September 28, 2021 06:00

This declaration was decreed in exercise of the powers vested in the president by section 17(1) of the Constitution of Botswana. The S.O.E. followed the recognition and declaration of the COVID-19 outbreak as a global pandemic, on 11 March 2020 by the World Health Organisation (WHO). Upon determining that the country would enter a period of S.O.E, the president indicated that the S.O.E stemmed from the need to take measures to address the risks posed by the pandemic.

The S.O.E, which at the time was scheduled to commence on 2nd April 2020, was to be for a short period of time. For reasons known by the country leadership, the S.O.E subsisted, and will only end on the back of September, perhaps as a 55th independence gift to the country. With the impending end of the State of Emergency, it is imperative to reflect and determine the effectiveness of the S.O.E, under the circumstances.

The main limitation of the analysis offered here, is that since the first case of COVID-19 was discovered in Botswana, the pandemic has been treated as urgent, and as an emergency for 17 months. For this reason, and others unknown to the writer hereof, there has been no strategic plan developed to engage with the pandemic, to combat it, and to ensure readiness. The plans which have been shared publicly, were shared through various addresses by the president, and other country leaders at different points of the pandemic. In some instances, the leaders declared that the country is in a period of extreme social distancing, with each period of extreme social distancing, being characterized by various factors. In other periods, interzonal movement was largely prohibited, in efforts to contain the spread of the virus. Sometimes, alcohol was banned, and gatherings limited to smaller numbers, and other times contact tracing measures were introduced in different places where people gather. Of course, because our leadership, like the rest of the world, were (and still are), dealing with a monster who does not disclose the next move, it would understandably have been challenging to come up with a concise plan of action. So we bear this in mind, in reflecting.

To begin with, it is important to define what a S.O.E. is. In addition to the general importance of definition, in that they help us think and communicate more clearly, and help us to better understand any subject matter, in this case, it will be essential in determining whether the condition Botswana has been in, warranted the S.O.E and all its extensions, since its first introduction. It will also be critical in contextualizing the actions taken by the leadership, and in interrogating their necessity at the time.

A S.O.E is a declaration made in response to an extraordinary situation which poses an extraordinary threat to a country. The declaration would suspend certain normal functions. This includes the functions of government, as well as the limitation of citizen’s behaviors under normal circumstances. S.O.E may also authorize government agencies to implement emergency preparedness plans and limit or suspend the civil liberties and human rights of those in the country. So in essence, a S.O.E is the introduction of emergency laws and restriction in a period when the country is experiencing extraordinary circumstances. The important principles and practices a government observing a S.O.E would have to be cognizant of in a period of S.O.E are provided for in various international treaties to which Botswana is party. Amongst these are the International Covenant on Civil and Political Right (ICCPR). The S.O.E should be made by way of declaration announced publicly, for all citizens to be informed and made aware of the state. There should be communication of this to other states as well as treaty bodies to which the country is party. The measures taken by the state, should be proportional in response to the crises being addressed. Human rights and fundamental freedoms should be respected throughout the S.O.E, and there must be temporality to this declaration which should observe the intangibility of fundamental rights.

Certain human rights cannot, even in the S.O.E be limited. These include the right ti life, prohibition of torture, freedom from slavery, freedom from post facto legislation and other judicial guarantees, the right to recognition before the law, and finally, freedom of thought, conscience and religion. The UN Human Rights Committee has further recognized that in addition to these non-derogable rights, several other humanitarian provisions must remain inviolable. There should be humane treatment of all persons deprived of their liberty, there should be protection of the rights of persons belonging to minorities, propaganda advocating war or national, racial or religious hatred are prohibited along with hostage-taking abd unacknowledged incarceration, and finally, there are procedural guarantees abd safeguards designed to ensure the integrity of the judicial system.

In this series, reflecting on the S.O.E declared over Botswana, in response to the COVID-19 pandemic, we will engage on the effectiveness of the S.O.E. A pandemic is indeed an extraordinary and unexpected event, which nobody could have anticipated, and nobody did. So whether by definition, the pandemic is a crisis demanding emergency and urgent response, is unquestionable. What we will engage with, is whether, under the circumstances, Botswana upheld her international obligations, and whether in responding to the crisis, the S.O.E successfully did what it was intended to do.