COVID-19 and Africa Symposium: The Impact of COVID-19 on Human Rights in Africa

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists and Tanveer Jeewa is a Communications Consultant for the International Commission of Jurists.]

This week Opinio Juris is hosting an online symposium on the impact of COVID-19 on human rights in Africa. Coordinated by the International Commission of Jurists’ Africa Team, the symposium hones in some key issues arising out of the global pandemic and State responses to it in Africa. Its key focus throughout is highlighting the need for States’ COVID-19 responses to be consistent with international and regional human standards, which has been central to the ICJ’s global advocacy during the pandemic.

The first three contributions to the symposium focus squarely on the impact of COVID-19 on Economic, Social and Cultural Rights (ESCR) throughout the continent.

Justice Jamesina King, a judge of the Sierra Leone High Court and Commissioner for both the International Commission of Jurists and the African Commission on Human and People’s Rights highlights the African Commission’s own responses to COVID-19. She argues that the realization of ESCR are essential in “ensuring a prosperous and humane existence on the African continent post COVID-19”.

Justice Moses Chinhengo, a judge of the Lesotho High Court and Commissioner for the International Commission of Jurists questions whether courts in Africa have been overly deferential to States in the context of COVID-19 responses. He argues that this kind of “jurislimitation” may ultimately “both amount to a failure to provide effective remedies for violations of social and economic rights, and also compromise States’ ability to legitimately and effectively respond to the pandemic”.

Mandipa Machacha, focuses on the impact of COVID-19 on girls’ rights to education across Africa. Citing a range of examples of the disproportionate social and educational impacts of school closures and online education to girls, she argues that States must pay more attention to these human rights violations because “it is in times like these that girls, who are often amongst the most vulnerable in our society, are otherwise left behind”.

The next three contributions to the symposium are written by ICJ Africa staff who provide analysis of legal challenges to States’ COVID-19 responses in the form of lockdown regulations that have succeeded in Namibia, Lesotho and Malawi.

Analyzing the Namibia Employers Federation judgment, Vimbai Mutandwa argues that the Namibian High Court’s insistence on strictly and narrowly interpreting the executive’s powers to derogate from rights during states of emergency are a vindication of the rule of law and the principle of legality. However, she notes that the judgment does not engage with international law standards adequately and fails to “engage with the substance of the issue at hand: the rights of workers and the impact of COVID-19 on them economically”.

Nokukhanya Farise argues that, in Lesotho Medical Federation, the Lesotho High Court’s finding that the government is obliged provide protective personal equipment (PPE) to health workers is consistent with the standards set out in international human rights law in terms of the rights to work and health. However, as she observes,

disappointingly the judgment fails to consider or adopt directly relevant international human rights law standards binding on the Lesotho state, including the judiciary.

In a two-part blog Tim Fish Hodgson highlights two important dimensions of the Malawi High Court’s decision in S v Kathumba to interdict and then strike down the government’s efforts to impose a lockdown. In Part 1, he covers the separation of powers and rule of law-based concerns raised by the Court in finding that the lockdown exceeded the executives’ powers in terms of the empowering legislation and encroached on the domains of the legislature and the judiciary. In Part 2, he stresses the importance of the Court’s finding that, in the absence of adequate social assistance measures, a lockdown violates the right to security. Though criticizing the Court’s failure to consider international human rights law standards, he concludes that the decision is “happily consistent with such standards, and it is hoped that similar approaches, supplemented by engagement with international human rights law standards, will continue to be adopted by Courts on the African continent and globally as the COVID-19 pandemic continues into 2021”.

The following contribution is by ICJ Africa’s Justice Alfred Mavedzenge, who considers the ways in which the COVID-19 pandemic has provided certain autocratic regimes, such as Eswatini and Zimbabwe, with an opportunity to crack down on freedom of expression. He illustrates this point by reflecting on overbroad laws and COVID-19 regulations which criminalize and chill speech, ultimately “constrain[ing] the press and the public from enforcing transparency and accountability on the management of the COVID-19 pandemic, public resources and other issues”.         

The last two contributions to the symposium focus on the impact of COVID-19 on queer people on the African continent.

Letlhogonolo Mokgoroane, a South African lawyer and LGBT activist, elaborates on the multiple instances of violence and discrimination against LGBT persons in South Africa during the COVID-19 pandemic. He focuses on LGBT refugees and asylum seekers who face discrimination not only because of their immigration status, but also due to their sexual orientation and gender identity. He recommends that the South African government  “take active measures to combat hatred and discrimination by individuals and groups – to declare that our lives, as queer people, matter”.

Finally, Keaton Kidist Allen-Gassesse, a South African based human rights lawyer, focusing on gender and sexual rights in Africa, writes on the different ways in which the COVID-19 pandemic has compounded existing stigma and discrimination against LGBT persons in a wide range of African countries. She considers both public and private sites of discrimination against LGBT persons in Africa during the pandemic and suggests that “regional human rights mechanisms, particularly the African Commission, should use this opportunity to call for the explicit protection of Africa’s queer communities … in order to set a strong precedent for the continent and beyond”.