By: *Isaac Lesetedi, JA
The coronavirus is a highly contagious virus, spreading across the world at an alarming pace, and bringing along mass hospitalizations and deaths in many countries across the world. Through the World Health Organisation, countries have adopted several public health strategies to contain the spread of the pandemic. Amongst these strategies, is social distancing which is implemented in various degrees. In the looser degree, countries regulate the distancing requirement between people in social settings and limits the number of people in social gatherings and, in some countries, going further by proscribing all social gatherings except the most essential. The more stringent form of limitation of human social distancing is generally referred to as a lockdown.
As of this writing, Botswana has 13 reported cases, with only one reported death, having recorded the first case of COVID-19 on 30th March 2020. The following day with one more case and a death reported, the Government, having a few weeks earlier imposed less restrictive measures before any case was reported in the country, took a more stringent step with the President declaring a state of public emergency under Section 17 of the Constitution and ordering a national lockdown for 28 days effective from midnight of 2nd April 2020. Section 17 of the Constitution only permits the President to declare a state of public emergency for up to 21 days unless it is endorsed by parliament to last up to six months which may be extended for intervals of six months. The declaration of the State of Public Emergency does not take away the judicial functions of the courts.
The Emergency Powers Act, (Emergency Powers (COVID-19) Regulations, 2020) inter alia, requires people to stay at home unless in special circumstances for instance urgent medical attention or getting groceries. The exception is also for those performing essential services for instance medical services, law enforcement, utilities, courts, legal practitioners, media etc. In recognition of the Public Health requirements of limitations of movement (stay at home requirements) occasioned by the lockdown, the judiciary has implemented a work-at-home policy with a skeleton of judges and magistrates selected to deal with extremely urgent matters during the lockdown. These cases include domestic violence which has been reported to be on the increase in some countries during the lockdown measures.
At a special sitting on 8th and 9th April 2020, Parliament endorsed both the declaration of the state of emergency and the emergency regulations.
Among the regulations, is a provision empowering the Chief Justice to, inter alia, issue directives to suspend the operation of any of the court procedures and timelines laid down in the Rules of any Court. Acting pursuant to that regulation, the Chief Justice has issued a practice directive on the court operations during the state of public emergency. Of relevance herein is that the directive limits hearing of cases to extremely urgent applications. What constitutes extremely urgent applications generally stands to be determined by the court but the regulation identifies some of the matters that meet the category. Of the five which it identifies, three are specifically in relation to women and children. These are, any case involving domestic violence under the Domestic Violence Act (women are generally the victims in such cases), garnishee applications for maintenance of minors and deserted spouses, and payment of maintenance for minors under the Guardian Fund.
These measures of specifying these cases for identification in the category of extremely urgent applications take cognisance of the vulnerability of women and children in circumstances such as the present and the need for the law to provide for the enforcement of their rights as a legally vulnerable group. While these categories may not be exhaustive of all the issues women and children face, it is recommended that the judiciary works in tandem with local communities and civil society organizations to enforce protective measures in order to mitigate any unforeseen gender-based and child-based abuses during this pandemic and beyond.
*Isaac B. Lesetedi, LLB (University of Swaziland). Justice of the Court of Appeal of Botswana. He joined the bench as a Judge of the High Court in 2001 and was elevated to the Court of Appeal in 2012.
The views expressed in this entry belong solely to the author.