Abstract
Having been confronted with the COVID-19 pandemic, the Kingdom of Eswatini has had to adopt both soft and hard response measures. The constitutional emergency response framework had not envisaged the type of emergency brought about by COVID-19, forcing the state to enact extraordinary regulatory measures. Unprecedented emergency powers have been conferred on state functionaries. Questions have arisen as to the nature of these emergency powers, the manner in which these powers have been exercised and the absence of special oversight mechanisms. The response measures and regulations have had an unparalleled impact on lives and livelihoods of Emaswati. This article explores the nature of emergency powers in the laws of Eswatini, and the particular effects of the COVID-19 regulations on human rights. This article commences with an analysis of constitutional emergency powers in Eswatini and the limitations thereof, and considers the question of why the state did not invoke a constitutional state of emergency. The article proceeds to examine the nature of statutory emergency powers under the Disaster Management Act, and considers whether there are effective legal limitations on the exercise of executive authority and effective safeguards against the abuse of power. The article then deals with the particular impact of the COVID-19 response legal framework on human rights protection. In this regard, the article advances examples of situations where rights have been infringed. Finally, the article proposes that the state's response measures should continuously endeavour to mitigate the long-term impact on human rights.
Highlights
The Kingdom of Eswatini has not been spared the scourge of the COVID-19 pandemic
The part includes an examination of the nature of constitutional and statutory emergency powers and the manner in which these have been exercised, in an attempt to discern how the COVID-19 response framework caters for human rights concerns and ensures compliance with the rule of law
Announcing the declaration, the Prime Minister stated: I have been commanded by His Majesty King Mswati III and Ingwenyama to invoke section 29 of the Disaster Management Act 2006, having assessed the magnitude and severity of the outbreak of the Coronavirus (COVID-19) pandemic confirmed world over, to declare a national emergency in the Kingdom of Eswatini with immediate effect for a period not exceeding two (2) months
Summary
The Kingdom of Eswatini has not been spared the scourge of the COVID-19 pandemic. The first confirmed case was recorded on 13 March 2020, and thereafter the number of infections steadily soared. This article examines the way in which the emergency response measures and the implementation of regulations have inadvertently affected the enjoyment of some fundamental rights and impacted lives and livelihoods. 6 Government of Eswatini Declaration of national emergency in response to Coronavirus 17 March 2020. (2020) 20 AFRICAN HUMAN RIGHTS LAW JOURNAL how the COVID-19 crisis has exacerbated the vulnerability of the least protected in society by causing greater economic and social inequality. It is commonplace that the state has a continuing duty to respect, protect and fulfil the rights of its people,[7] and that human rights law recognises the necessary limitations on the exercise of certain rights during national emergencies.[8] It is accepted that an emergency by its nature is temporary.[9] The article recognises that the scale and severity of COVID-19 may reach levels at which the limitation of some rights might be reasonable on the grounds of public health. The article seeks to identify and interrogate the medium and long-term impact of Eswatini’s legislative response to people’s lives, rather than to downplay the significance of the response measures
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