By Atty. Urias Teh Pour, LLM
The surge of the global COVID-19 pandemic has provided compelling reason for States to impose restrictive measures, some in the form of health protocols to beat back the spread of the deadly diseases. These measures have provoked debate, essentially around the nature and scope of these restrictions vis a vis the protection of human rights. While limitation for public health reasons are legitimate, there has been concern that the outbreak appears to open a window of opportunity for some States to further entrench repressive measures and far overreach the limits in place under international human rights law on their powers during this crisis. Reports of restriction on free expression and information and limit on public participation are becoming increasingly common.
Under International and regional human rights laws, derogation of certain rights are permissible during emergency. For the purpose of public health protection, the International Covenant on Civil and Political Rights -ICCPR and the African Charter on Human and Peoples’ Rights (ACHPR) permit the following restriction: the right to manifest or practice one’s religion; freedom of movement; freedom of assembly; freedom of association and freedom of expression. However these restrictions must be be proportionate to the crisis; be necessary for protecting the nation and responding to the threat; not discriminate on the basis of race, color, sex, language, religion, or social origin; remain compatible with the state’s other international law obligations; and last only as long as necessary
For example, Article 19 (3) (a) and (b) of the ICCPR provides that restriction of the rights to freedom of expression can be limited: a. ‘for respect of the rights or reputations of others; b. For the protection of national security or of public order (ordre public), or of public health or morals.’ Additionally, Article 27 (2) of the ACHPR provides that ‘[t]he rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.’
As the restrictions occasioned by the COVID-19 emergency has become a global development, the Government of Liberia in April announced a state of emergency (SOE) consistent with articles 85-88 of the 1986 Liberian Constitution. The President on 8 April informed the Legislature that the SOE was consistent with the Constitution of the Liberia and Public Health Law of 1976. However, the declaration failed to take into consideration article 86 (a) of the Constitution which states that ‘the President may suspend or affect certain rights, freedoms and guarantees contained in this Constitution…’ similarly, the Legislature in its resolution authorizing the State of Emergency declared by the President did not provide a scope of the emergency power regarding suspension of those rights that conflict with the health exigencies
Besides, Article 4 of the ICCPR which Liberia ratified in 2004 provides that whenever a State suspends rights during crisis, they are obliged to inform other State Parties to the Covenant through the intermediary of the Secretary-General of the United Nations in respect to the reason for suspending rights under the covenant and those specific rights they have derogated to accommodate the emergency as well as on the date on which the derogation terminates.
The fact that the President or the legislature did not announce the suspension of rights that affect by the health crisis did not mean that restrictive measures are not in place. For example, the free movement, association, assembly and certain aspects of religious worships have been severely restricted. It is worth mentioning, that when State of Emergency is officially declared it is relevant to notify international institutions like the UN about measures that derogate from some of their human rights treaty obligations. Notification, many human rights scholars argue, reflect a country’s commitment to legality and normalcy. It also has the positive effect of taming the emergency powers by constraining the State to articulate their emergency measures under the terms of necessity, proportionality, exigency in the situation, temporarily and a commitment to human rights as a framework for legitimate emergency measures.
While the failure of the Government to fulfill the ICCP requirement of notification may not explain some of the excesses of the State functionaries in the enforcement of the SOE (INCHR press statement 28 April 2020), there are growing concerns that freedom of expression has been unlawfully restricted and that a deliberate policy of media censorship institutionalized.
For example, on 29 April, the Solicitor General of Liberia, Honorable Sayma Syrenius Cephas threatened to seize the equipment and revoke the licenses of media outlets publishing or broadcasting “fake news.” Individuals spreading lies on social media, including Facebook, would also be hunted down and prosecuted during the state of emergency.’ Hon. Cephas claimed that that the SOE declared under article 87 of the constitution curtailed basic rights including the right to free speech and freedom of assembly. The Solicitor General issued these threats after it was rumored that President George M. Weah had been tested positive to Covid-19. The rumors went viral on social media (Facebook) a few days after several senior officials reportedly tested positive. They included the Ministers of Information and Justice who had recently been in close contact with President Weah.
Additionally, in early May, the Deputy Minister of Information for Press and Public Affairs, called for the immediate withdrawal of all press passes issued to journalists in accordance to an MOU signed between the PUL and the government at the time when President Weah declared a three-week state of Emergency to fight the novel Coronavirus. Appearing on a local radio station Prime FM, on 7 May, the Minister threatened that any journalist who refuses to obtain the new information Ministry pass will be arrested for gross insubordination. The Press Union of Liberia (PUL) reacted and termed the Minister statement as attempt to undermine the role of the journalist in the fight against the COVID-19.
The Secretary General of the UN has called for the ‘greater protection of journalist who are providing the ‘antidote’ to what he characterized as a pandemic of misinformation surrounding the COVID-19 crisis.’ The Secretary General has urged Government to protect journalist and others who work in the media and to uphold press freedom. While acknowledging temporary restriction on movement to defeat the virus, these restriction he urged must not be abused and an excuse to crack down on journalists’ ability to do their work. Also, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has echoed that ‘independent media has been an essential level of public information, uncovering stories of government deception while also helping people everywhere to undercover the nature and scope of the pandemic.’
Similarly, the Special Rapporteur on Freedom of Expression and Access to Information in Africa has underscored the importance of the media in reporting science-based information on the threat of COVID-19, role and impact of the measures adopted in preventing and containing the virus, precautionary measures to member of the public and on the scale of the spread. Furthermore, the UN Human Rights Committee has cautioned States Parties to use objective and nondiscriminatory criteria in their accreditation schemes, consistent of Article 19 of the ICCPR ‘taking into account that journalism is a function shared by a wide range of actors.’ The African Commission on Human and Peoples’ Rights has also stated that ‘[t]he right to express oneself through the media by practising journalism shall not be subject to undue legal restrictions.’
The Commission further enjoins States ‘to take measures to prevent attacks on journalists and other media practitioners, including murder, extra-judicial killing, torture and other forms of ill-treatment, arbitrary arrest and detention, enforced disappearance, kidnapping, intimidation, threats and unlawful surveillance undertaken by State and non-State actors.’
In the wake of these developments, independent media, especially print media has incurred huge financial constraints. Reporters without Borders has called on the Government of Liberia to provide financial assistance to the country’s print media which had to suspend production. Nevertheless, the Publishers Association of Liberia (PAL) has committed to continue publication online to keep their many readers, client and advertisers inform of the ongoing COVID-19.
The role of the media at this critical juncture of the campaign to end COVID -19 is crucial to address the mountain of related challenges — false news that serve as a source of frustration which has been dubbed as disinfodemic, a term adopted to describe the falsehoods fueling the pandemic and its impact. This viral load of potentially deadly disinformation has also been described by the UN Secretary General as ‘a poison, and humanity other enemy in this crisis’
Article 32 of the ECOWAS Protocol on Good Governance provides that good governance and press freedom are essential for preserving social justice, preventing conflict, guaranteeing political stability and peace and for strengthening democracy. The instrument to which Liberia is a High Contracting Party, charges State Parties to give financial assistance to privately-owned media through an independent national body or a body freely instituted by the journalists themselves.
The Constitution of Liberia expressly provides right to freedom of expression without limitation during state emergency. Hence, the Government of Liberia must take concrete step to safeguard this right. More than ever, this period demands critical journalism particularly in relation to monitoring government action, especially when it comes measures that the Government have taken. The Government must take steps to protect the work of journalists, not criminalize their efforts when they provide essential information to the public on the COVID-19
As always the case, emergency powers risk being abused sometime for political purposes such as stifling freedom of expression. It has been argued that when a State is spellbound to this strategy, it stands to lose gains made in the protection of human rights prior to the State of emergency and therefore recalibrate downward in the human rights protection. It is more the reason, it has been suggested that in some respect States are enjoined to handle crisis through normally applicable powers and procedures and insist on full compliance with human rights even when introducing new necessary measures to address pressing social need created by the pandemic.
Overall, the Government of Liberia must tread cautiously in dealing with COVID-19, because Liberia is State Party to many international human rights instruments that require accountability. Liberians and world are watching.
Atty. Urias Teh Pour holds Master in Laws (LLM) in Human Rights and Democratisation in Africa from the University of Pretoria. He is the Director of Legislative Assistance, Treaty Matter and Law, Independent National Commission on Human Rights of Liberia (INCHRL)