COVID-19 and Africa Symposium: Lockdowns, the Right to Work and the Rule of Law in Namibia

[Vimbai Mutandwa is a Legal Advisor at the International Commission of Jurists.]

In NEF v President of the Republic of Namibia the applicants, the Namibian Employers Federation, challenged the legality of aspects of lockdown measures taken by the government in response to the COVID-19 pandemic.

The Court’s decision is of interest and importance because it upholds the principle of legality and the rule of law by requiring the President to follow constitutional and legal processes in responding to COVID-19.

Insisting that emergency powers that allow for restrictions of rights must be strictly and narrowly interpreted, the Court warned that the lawfulness of COVID-19 response measures “do[es] not depend on how laudable … they are”. This judgment makes it clear that expansion of executive powers in response to COVID-19 must be regulated to ensure that they are not misused, and that courts should where necessary intervene to ensure executive compliance with the rule of law.

Government response to COVID-19 in Namibia

When the first cases of COVID-19 were confirmed in Namibia on 14 March 2020, the Government began to take measures that have been common worldwide including suspension of air travel, closures of schools and the prohibition of large gatherings.

On the 17^th of March 2020, the President of Namibia declared a State of Emergency in terms of Article 26 of the Namibian Constitution read with section 30 of the Disaster Risk Management Act. Thereafter a series of regulations were promulgated by the President.

In terms of Article 26 of the Namibian Constitution, the President may make regulations which have the effect of restricting rights where such restrictions are “reasonably justifiable”, and “have the purpose of dealing with the situation which has given rise to the emergency”.

Some of regulations enacted by the President, purportedly in terms of these powers, suspended existing legislative provisions with the effect of prohibiting employers, for reasons relating to COVID-19, from taking measures such as: dismissing employees; terminating contracts of employment; forcing employees to take unpaid leave or annual leave; and reducing the remuneration of employees.

Derogations of rights must be “strictly and narrowly” construed

The Namibian Employers Association challenged the validity of these regulations for a range of reasons. Most significantly they argued that the regulations were ultra vires the President’s regulatory powers as they did not directly “deal with” the situation giving rise the emergency (ie. the COVID-19 pandemic). Furthermore, they argued that the President had unlawfully delegated the power to produce such regulations to Ministers in his government. 

The Court’s point of departure in making its determination was that the powers afforded to the President in terms of Article 25(b) of the Constitution must be narrowly construed because “derogations from [fundamental] rights and freedoms must be narrowly and strictly construed” as a general matter.

Much therefore turned, on whether the regulations in question “deal with” COVID-19, given that the President’s powers to produce regulations are limited to regulations purposed at “dealing with the situation which has given rise to the emergency”.

Literally interpreting the plain grammatical meaning of “dealing with”, the court reasoned that the regulations deal with “labour matters” and aim to maintain the status quo in employment situations during lockdown periods. Though their aims may be laudable therefore, because they “do not do something to control or curtail the spread” of COVID-19 they do not deal with COVID-19. The Court therefore concluded that regulations of this type are were ultra vires and in violation of the principle of legality and rule of law:

“The determination of the legality of the regulations do not depend on how laudable, as Mr Marais argued, they are. The legality of the regulations, strictly interpreted, is measured by enquiring whether they are authorised by the Article of the Constitution cited as the source of the power to make them. The regulations are therefore not “reasonably justifiable for the purpose of dealing with the situation which has given rise to the emergency” and to that extent the President breached the principle of legality.”

Power to Derogate cannot be impermissibly delegated

Giving further guidance to the Government on how it could proceed in its COVID-19 responses, the Court also found that the President had impermissibly delegated the powers conferred on him in terms Article 26 of the Constitution to Ministers. This, the President had done, by authorizing Ministers to: “issue directives for the purpose of supplementing or amplifying on any provision of the regulations; or for the purpose of ensuring that the objectives of the regulations are attained”.

The Court reasoned that, in doing so, the President was “literally speaking abdicating part of his constitutional power”, unlawfully. Though permitting Ministers to make directives to ensure the implementation of the President’s regulations may be permissible the Court found that empowering Ministers to “supplement”, “amplify” or “enhance” the President’s regulations and thereby impose additional restrictions on rights was unlawful.

Ultimately, some of the regulations issued by the President went even further, according to the Court amounting to the President “giving his ministers ‘a blank cheque’ to deal with any matter that is within the ambit of any legislation or law”. This, the Court concluded, is “the purest example of relinquishing power, unfettered and uncontrolled and is surely impermissible delegation”.

Upholding the Rule of Law and Protecting Human Rights

The High Court’s judgment upholds the principle of legality and thereby the rule of law by requiring the President to follow constitutional and legal process in responding to COVID-19. The Court’s affirmation that restrictions of rights in terms of emergencies must be interpreted strictly and narrowly also sends a strong message to the executive to be cautious of overreaching in the name COVID-19 response measures.

Such clear messages provide a bulwark against the risk of executive initiated rights restrictions and violations under the guise of COVID-19 response measures. The expansion of executive powers, as seen in this case, and has been common globally, went as far as resulting in the creation of new criminal offenses by executive officials, a power appropriately commonly reserved for democratically elected legislatures. Legislative safeguards to protect individual rights and freedoms are essential, especially in the context of a public health emergency like COVID-19, and should not be overlooked.

One weakness of the judgment, however, is its failure to  take into consideration international human rights law standards at any stage. International human rights law imposes standards governing the permissibility of restrictions and limitations of rights in the context of emergency, reflected clearly in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. As Namibia became a party to the Covenant in 1994, its provisions are binding on Namibia’s executive, legislature and judiciary and ought to have explicitly informed the Court’s decision.

Moreover, the judgment does not engage with the substance of the issue at hand: the rights of workers and the impact of COVID-19 on them economically. Though noting the “laudable” aims of the regulations, the Court, in coming to the aid of employers, does not adequately consider the impact of its judgment on vulnerable workers.

This is important in this context. Though Namibia’s Constitution does not include a specific section protecting labour rights, Article 95(c) includes as a “principle of state policy” the need for the State to ensure: “active encouragement of the formation of independent trade unions to protect workers’ rights and interests” and the promotion of “sound labour relations and fair employment practices”. Article 95(d) also requires the State to where possible adhere to standards set by the International Labour Organisation.

In addition to being an ILO member, Namibia has acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is therefore required to respect, protect and fulfil the right to work. In the specific context of COVID-19 the UN Committee on Economic, Social and Cultural Rights (CESCR) has issued a statement urging States to implement “targeted programmes to protect the jobs, wages and benefits of all of workers” and “take immediate measures to protect the jobs, pensions and other social benefits of workers during the pandemic, and to mitigate its economic impacts”.

While sending a clear message to the government about the need to comply with the rule of law, had the Court explicitly considered international human rights law in doing so, it might well have done more to remind the State of its obligation to replace the measures struck down to ensure the mitigation of the economic impact of COVID-19 on workers and the realization of the right to work.