By Babacar Kanté, Ph.D.
Former Constitutional Court Judge, Senegal
Former Professor and Dean, Faculty of Law, University of Gaston Berger
According to many experts, the new coronavirus which emerged in December 2019 is no more serious than other pandemics mankind already experienced. Nevertheless, it is unprecedented, both in terms of its brutal and speedy spread, as well as its wide-ranging political, economic, social, cultural and environmental impact. By April 2020, four months after its emergence, it had affected two hundred and four (204) countries and territories, that is more than the total United Nations membership, and the death toll standing at 364,000 as of 30 May 2020. In this chaotic situation, governments are endeavoring to provide emergency responses, in almost every aspect of public and private life, giving at times the impression of muddling through rather than implementing a well-thought-out strategy.
Among the measures taken, legal acts account for a quantitatively and qualitatively important place. Indeed, a series of legislative and regulatory acts have been taken, in order to establish a state of health emergency and thus provide legal basis for the various measures envisaged. These decisions put legal doctrine into a terrible state. These measures trigger various reactions because, while their objective— the right to health, is given a constitutional rank, they carry the risk, whether real or potential, of infringing on fundamental rights or civil liberties. Such violations deserve all the more consideration since measures such as the lockdown or closure of public places, applied on a very large scale, relate to fundamental rights such as freedom of movement or assembly, concern sometimes the entire population of countries where they are applied and in some cases cover the entire national territory of the States where they are in force.
The observations of the doctrine are commensurate with the importance of the special measures taken by government authorities. Their conclusions are often skeptical, sometimes critical and rarely positive. The issue with the matters covered relate to consideration of the legality and expediency upon which the legal acts are based. But it is important to recall the background, and the factors in the light of which the authorities act. Indeed, solid analysis of these elements is required in order to take the hubris out of the debate and assess "objective subjectivity."
The fundamental question is whether, and to what extent, the law can or should be conceived as part of the strategy to combat the new coronavirus and not as an instrument to repress people through the exceptional circumstances of the health crisis? It is particularly sensitive because it means evaluating the trade-off between a sanitary requirement and a constitutional one. The authorities are thus reduced to attempting to reconcile apparently conflicting requirements such as focusing on effectiveness and respect for the rule of law.