Is the Lockdown Legal Anyway?

In his recent Presidential Address, the President of Uganda announced a total lockdown.  All movement across the country was prohibited with the exception of movement of cargo, essential workers and patients. All stations of engagement including courts, schools, prayer places, business spaces were also closed with the exception of essential businesses like pharmacies, factories and markets. This raises a legal concern as to the legality of the order.

Lockdown and human rights

Human rights are inherent and interdependent. The lockdown is a restriction on a number of human rights that include; the right to freedom of movement guaranteed by article 29 of the Constitution, the right to a livelihood that is guaranteed by article 22, the right to work that is guaranteed by Article 40, the right to access healthcare that is guaranteed by Article 45, right to education that is guaranteed by Article 30, right to freedom of religion that is guaranteed by article 29  and the right to a fair hearing that is guaranteed by article 28, among others.

Is the lockdown a valid limitation of human rights?

In order for the lockdown to be legal, it must be a valid limitation of human rights. It is settled law that some human rights are not absolute and can be limited in the public interest as stated in article 43. In Law Society of Kenya v Hilary Mutyambai and Others, the High Court of Kenya observed that certain human rights are not absolute and can be limited by instituting a lock down to combat the spread of Covid-19.

However, restrictions on rights must be justifiable. Article 43 provides that any restriction on human rights must be demonstrably justifiable in a free and democratic society. In order for a restriction to be justifiable, it must satisfy the tripartite test of being legal, necessary and proportionate. This was discussed thoroughly in the case of Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney General.

A restriction is legal if it is provided for by law. As such a state can enact principle and subsidiary legislation to restrict rights. Inthe case of Spedag Interfreight Uganda Limited and Others V Attorney General and Another, the Constitutional Court observed that a restriction of rights must be founded in law and that a restriction of the petitioners economic rights guaranteed by Article 40 cannot be based on a contract between government and a third party. As such until the lockdown measures communicated by the President are clothed in a statutory instrument, they cannot amount to a legal restriction on rights and thus their enforcement is illegal.

A restriction is necessary if it aims to achieve a legitimate aim. Instituting a lockdown to combat the spread of Covid-19 is necessary to achieve a legitimate aim of public health as stated in Law Society of Kenya v Attorney General .

A restriction is proportionate if it is the least intrusive measure against the enjoyment of human rights in light of the Oakes test established by the Canadian Supreme Court in the case of R v Oakes. In De Beer v Minister of Cooperative Governance and Traditional Affairs [2020] ZAGPPHC 184, the High Court of South Africa observed that the lockdown imposed by government was not proportional due to its over extended reach and lack of exceptions. The Court emphasized that a complete ban on all business activity without considering whether the same have measures in place to prevent the spread of Covid-19 was an unreasonable restriction on the right to livelihood of majority of South Africans that lived hand to mouth.  A blanket ban on movement without exceptions for medical emergencies and funerals without considering alternatives like having closed casket funerals or no dead body at all and limited numbers of mourners was not proportional.

Looking at the lockdown at hand in Uganda, closing all businesses with the exception of a few essential businesses without considering whether those businesses have measures in place to address the spread of covid-19 would be unreasonable and not proportional, a ban of all movement with the exception of patients without also exempting health workers would defeat the legitimate public health aim of curbing the spread of the pandemic since patients will not be in position to receive treatment if the health workers cannot make it to health facilities to offer the treatment. Also a ban on all movement when there is an ongoing vaccination campaign means that the population cannot get vaccinated which is unreasonable and thus not proportional. Not categorizing lawyers as essential workers is equally unreasonable considering that many individuals who are deemed to violate the lockdown measures by security officials will require legal representation (this has since been rectified). In the case of Law Society of Kenya v Hilary Mutyambai and Others, the High Court of Kenya observed that lawyers are essential workers and should be exempted from lockdown restriction measures.Imposing a lock down on the entire country including areas with little or no cases would be an over-reaching restriction on human rights and not be proportional

Therefore, in conclusion, human rights are inviolable even during a pandemic. Flattening the curve of the covid-19 pandemic should not come at the expense of human rights. In as much as a lockdown might be necessary for public health reasons, its implementation must be done in a manner that is least intrusive to the enjoyment of human rights. It all boils down to reasonable accommodation which is not being done