STATE OF NATIONAL EMERGENCY– WHAT DOES THIS MEAN FOR ITS CITIZENS?

“By virtue of the Power vested in me by Article 26(1) of the Constitution, I declare a State Of Emergency, with immediate effect.”

Not so long ago, Namibia sometime in 2019 declared a national state of emergency over drought. And of course, this was done so by  the President in terms of his or her prerogative powers pursuant to Article 26 of the Namibian Constitution. Such announcement is made by the President, in which he or she may declare such proclamation in the Gazzette, at a time of a national disaster or during a state of national defence or public emergency threatening the life of the nation or the constitutional order. 

This declaration comes at a time when the Covid-19[1] had Namibia report two confirmed cases on the 14 March 2020. The President, on 17 March 2020, declared State of Emergency in the country amid the Covid-19 pandemic. It becomes clear in terms of our Supreme Law (i.e. the Constitution of Namibia)[2], that such a decision was taken due to a public emergency threatening the life of the nation.  Subject to sub-article (2) – (4), the President shall have the power to make such proclamations as in his or her opinion are necessary for the protection of public safety and the maintenance of law and order. Naturally flowing from such right, subject to article 6, such regulations have to be approved by the National Assembly within 14 days when the National Assembly first sits after the date of commencement of said regulations.

What this would mean for the ordinary citizen is this, should the National Assembly with its 2/3 majority pass such resolution, the President shall have the vested power to: 

(a)   suspend the operation of any rule of common law or statute; and 

(b)   suspend any fundamental right or freedom protected by the Constitution 

This will usually last for such period and be subjected to conditions that are reasonably justifiable for the purpose of dealing public emergency threatening the life of the nation.

What does this power (the ability to decree a state of emergency) entail? 

To re-iterate the power of the Constitution, as the Supreme Law of Namibia, is to secure to all citizens justice, liberty, equality and fraternity. All the power that vested in the “people” of Namibia who would naturally exercise their sovereignty, now vests in the President of the Republic of Namibia to make reasonably justifiable decision to ensure necessary steps are taken for the protection of public safety. For us this means that, your right to protection of life; protection to liberty; respect to human dignity; slavery and forced labour; equality and freedom of discrimination; arrest and detention; fair trial; privacy; family; children’s rights; property; political activity; administrative justice; culture; the right to learn; fundamental freedoms, are all suspended.

Should your right to liberty, arrest and detention, privacy, property, and education be negated within the “ambit” of reasonably justifiable for the protection of public safety amid the Covid-19; shall not be inconsistent or to have contravened the Constitution of the Republic of Namibia.

Safe to say, Article 24(3) provides that: 

"Nothing contained in this Article shall permit a derogation from or suspension of the fundamental rights or freedoms referred to in Articles 5, 6, 8, 9, 10, 12, 14, 15, 18, 19 and 21(1)(a), (b), (c) and (e) hereof, or the denial of access by any persons to legal practitioners or a Court of law"

On 17 March 2020, the Namibian Cabinet resolved to approve further measures to strengthen the Namibia’s readiness to the Covid-19 outbreak. These measures were: 

·      suspension of the issuance of visas on arrival at the Hosea Kutako International Airport (HKIA) and the implementation of a travel ban on foreign nationals, by air and sea, from affected countries such as the Schengen States, China, Iran, Korea, United Kingdom, USA and Japan. 

·       temporary travel suspension for 30 days for Namibians or Permanent residents with exceptional cases of travel only to be allowed on persons seeking medical treatment, essential services like humanitarian assistance, truck drivers bringing food and other essential commodities, and Namibians returning home, among others.

·      Leisure, business and social travel like tourists to be suspended, and Namibians who are residents in other countries considering to visit Namibia to postpone such visits. 

·    All scheduled passenger flights, including private charted flights to and from countries where there is active local transmission to be temporarily suspended for 30 days with immediate effect. 

·      Conduct strict disinfection of aircrafts and training of airport staff on infection prevention ad control and provision of appropriate PPE. 

·      Mandatory screening for Covid-19 to be conducted at all points from countries at high risk or from affected other countries subjected to supervised self-quarantine from 14 days (self-quarantine for mild/asymptomatic persons); and 

·      South African borders, including air travel to remain open to serve as points of entry for Namibians returning home and exit point for visitors from Namibia, and to facilitate trade between the two countries. 

·      Deploy multi disciplinaries to complement their counterparts at the Ministry of Health and Social Services and the National Health Emergency Management Committee and funds to be availed for training, equipment, and materials. 

·      Mandatory immediate reporting of all suspected cases from both state and private health facilities, using set case definitions as well as taking specimens and packaging according to SOP’S. 

·      For a period of 30 days suspend large public gatherings (of not more than 50 people); schools, religious gatherings, customary, weddings, funerals, and all parades for uniformed forces to be suspended until further notice.  

·      Offices/ministries and agencies should request their respective state-owned enterprise to explore the possible impact of the Covid-19 on their business. 

·      That owners of shopping malls should be advised to make sanitizers available to the customers especially at the entrance of the shops. 

…to name a few. 

[1] A family of viruses that cause illness ranging from the common cold to more severe diseases. General symptoms of Covid-19 are associated with the respiratory system and they include a fever, coughing and shortness of breath. If left untreated or not treated correctly, infection can lead to pneumonia, severe acute respiratory syndrome, kidney failure and, in the worst case, death.

[2] Article 1(6): “This Constitution shall be the supreme law of the Namibia”.