When the World Health Organisation (WHO) declared the COVID-19 outbreak as a pandemic in March, extraordinary measures were taken by various Commonwealth authorities.

All, to various extents, restricted freedom of movement and conferred additional powers on the Executive to provide directives to organs for security.

The UK-based Commonwealth Lawyers Association (CLA), while acknowledging the moves by governments, noted: “…there have been actions taken that raise concerns about the extent to which Rule of Law and Human Rights are being respected”.

The CLA said in a statement: “Giving the police emergency powers, for example to impose fines and to be able to order people away from open spaces, requires those powers to be applied with proportionality.

“Emergency legislation must address the emergency.

“Such emergency powers should not be seen as an opportunity to pass laws which simply shore up a government or political party.

“The Rule of Law provides for scrutiny by Parliament of the acts of the Executive; allows informed criticism and debate without fear or stifling; allows for independence of the Judiciary and the legal profession.

“The Executive must operate knowing it will be held to account,” it added.

In Nigeria, for example, the country’s National Human Rights Commission (NHRC) said on Wednesday that it had recorded "105 complaints of incidents of human rights violations perpetuated by security forces" in 24 of the 36 states in the Federation, as well as Abuja.

The NHRC said it had recorded 18 extrajudicial killings by the security forces, more than the 12 Nigerians who had officially died from coronavirus infection.

In the UK, where the lockdown has been extended for another three weeks, there have been complaints that the police were being too over-exuberant in enforcing government guidelines. These are urging people to stay at home and venturing out only for essentials such as food, health reasons and work that could not be done at home.

There have been reports that the police have been checking shoppers in supermarkets and questioning them whether what they were buying were essential supplies.

The CLA, which promotes the Rule of Law throughout the Commonwealth, said: “The emergency legislation in many countries has been taken at speed and often with little or no Parliamentary scrutiny.

“The Judiciary has been closed.
“As a result, normal due process has been subsumed in the emergency of coping, or being seen to deal with the pandemic.”

The statement went on: “It is, nevertheless, essential whilst looking after the population, that governments maintain a high level of proportionality and are seen to apply the principles of the Rule of Law and Human Rights.

“Governments need to strike a balance between the rights of people and the need to protect from COVID-19.

“On the one hand are the rights to freedom of speech and movement, to enjoyment of family life; to privacy and to enjoy health care and education.

“And on the other hand, the state must provide protection and security,” the lawyers said.

They added that they were worried that “insufficient consideration is being paid, in parts of the Commonwealth, to the importance of these principles and achieving the right balance”.

They cautioned: “The Executive in any parliamentary democracy must be scrutinised by Parliament.

“The emergency legislation passed must not carry on when the emergency has passed.
“These powers have a season and are unconstitutional in normal times.

“The politicians who find themselves as part of an Executive at this time have responsibilities and are accountable.”

On the issue of the restrictions imposed on “movement and liberty”, the CLA said these “must be taken against the clearest weight of scientific evidence”.

“To confine people in their homes or anywhere else – and often in cramped, not necessarily sanitary conditions, which themselves are a source of ill health, disease or contamination – requires commensurate evidence that such confinement is of benefit to them and the society where restrictions are imposed,” the CLA said.

The lawyers urged Commonwealth governments to “act proportionately; act in a way which targets the current emergency and not for other purposes; ensure that emergency powers are only valid for the time of the emergency; and take into account, in all decision making relating to the Covid-19 pandemic, the necessity of abiding by, upholding and respecting the Rule of Law”.