Senegal: COVID-19 response violates rights

Between March and May 2020, the Senegalese Government adopted a series of administrative orders and decrees banning all protests in the country and imposing restrictions on freedom of movement to deal with the coronavirus pandemic. Some of these orders were adopted before the Government declared a state of emergency and imposed disproportionate restrictions on the rights to freedom of expression and freedom of assembly in violation of international law. ARTICLE 19 expresses concerns about these measures and further calls on the Government to repeal the Law no. 2021-18 that would entrench broad executive powers to restrict people’s human rights in the absence of a declaration of a state of emergency.

On 13 March, the Minister of Interior banned all protests and both public and private gatherings on Senegal’s territory for a period of 30 days between 14 March and 14 April 2020.

On 23 March 2020, the Government proclaimed a state of emergency on all of Senegal’s territory by the Decree No. 2020-830. The Decree did not specify how long the state of emergency would last but referred to provisions in the Constitution and existing laws. Article 69 of the Senegal Constitution provides that a state of emergency may be decreed by the President for a period of 12 days.

It remains unclear whether the Senegalese Government communicated to the UN Secretary-General its decision to withdraw from certain provisions of the International Covenant on Civil and Political Rights to which Senegal is a party.

On 24 March 2020, the Minister of Interior banned all movement of people and goods between cities at all hours and in all provinces between 20h and 06h. The order made exception for government officials, health workers and vehicles transporting goods. It also gave authority to the Minister or regional high-ranking administrative officials to grant special authorisation where necessary.

On 2 April, the Law no. 2020-13 was adopted granting the President of Senegal exceptional powers to prolong the state of emergency for a period of up to three months. On 3 April, Decree no. 2020-925 was adopted extending the state of emergency for a period of 30 days. On 3 May, Decree no. 2020-1014 was adopted, extending the state of emergency for an additional 30 days.

In January 2021, the President of Senegal promulgated a new Law no. 2021-18 modifying the Law no. 69-29 of 29 April 1969 concerning the state of emergency or state of siege. The new Law introduces a new title dealing with natural disasters or public health emergencies. Article 24 gives powers to competent administrative authorities to take all measures necessary to maintain the normal functioning of public services and protect people without having to declare a state of emergency. This includes measures such as curfews and restrictions on freedom of movement for a month, renewable once. Under Article 25, the President, Interior Minister, other relevant ministers, governors, and high-ranking regional administrative officials (préfets) can exercise these powers.

ARTICLE 19 believes that these measures are problematic from the perspective of international human rights standards, particularly those on the right to freedom of expression and freedom of assembly.

International human rights standards

Under international human rights law, any restriction on freedom of expression or freedom of assembly must be provided by law, pursue a legitimate aim and be necessary and proportionate in a democratic society. The law must be sufficiently precise for individuals to be able to regulate their conduct. Proportionality means that the proposed measures should be the least restrictive of human rights.

In addition, States are required to comply with a number of substantive and procedural requirements under international human rights law when declaring a state of emergency.

• Legality, necessity and proportionality: Governments should first determine whether existing emergency and public health legislation gives them the powers necessary to address the threat to public health raised by the coronavirus pandemic. As States consider whether to derogate from international human rights treaties, the principles of legality, necessity and proportionality must continue to apply throughout emergencies whilst taking into account the exigencies of the situation.
• Non-discrimination: Emergency legislation should contain non-discrimination clauses to ensure that extraordinary powers to detain or refuse entry into the country do not discriminate against any section of the population.
• Parliament scrutiny and oversight: As governments enact the most draconian legislation in peacetime to protect the public from coronavirus, parliaments must keep the necessity of those powers under review at regular intervals. At a time of crisis, the temptation to accrue exceptional executive power is strong and the need for those powers may well be justified. But they must always be constrained by the rule of law and parliamentary oversight.
• Sunset clauses: It is vital that emergency powers are strictly time limited and not permanent or normalised. As such, emergency legislation brought in to deal with the coronavirus pandemic should include sunset clauses.

Moreover, under international and regional freedom of expression standards, in particular Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), any legislation restricting the right to freedom of expression must meet the test of legality, necessity, and proportionality. More specifically, this requires that the limitation must be:

• Provided for by law, any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly (requirement of legality);
• In pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations of others; or the protection of national security or of public order (ordre public), or of public health or morals (requirement of legitimacy);
• Necessary in a democratic society, requiring the State to demonstrate in a specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat (requirement of necessity).

Senegal’s blanket restrictions on freedom of assembly and freedom of movement are disproportionate

At the outset, ARTICLE 19 notes that the Senegalese Parliament adopted legislation in April 2020 granting the President exceptional powers to prolong the state of emergency for a period of up to three months, i.e. for a limited period of time. Nonetheless, ARTICLE 19 considers that Senegal failed to comply with its obligations under international human rights law for the following reasons:

• Blanket and disproportionate restrictions on freedom of expression, assembly and movement: ARTICLE 19 notes that the Minister of Interior adopted draconian restrictions on people’s fundamental freedoms, namely the rights to freedom of assembly and freedom of expression in the absence of a declaration of a state of emergency under domestic law. As such, the legal basis of the Minister’s order is highly questionable and likely ultra vires. In any event, such blanket restrictions were disproportionate and unjustified even in the context of the pandemic. In many countries, people were able to continue to exercise their rights, including the right to protest, whilst following public health measures in designated areas. The government entirely failed to explain why the measures it adopted were necessary and proportionate.
• Failure to follow a proper procedure to declare an emergency and restrict rights: ARTICLE 19 reiterates that the Senegalese government adopted draconian restrictions on freedom of expression, freedom of assembly and freedom of movement in early March in the absence of a declaration of a state of emergency under domestic law, let alone any notification to the UN Secretary-General in relation to possible derogations from its obligations under the International Covenant on Civil and Political Rights. It is only on 2 April 2020 that primary legislation was adopted granting the President powers to declare a state of emergency for a period of up to 3 months. Non-discrimination provisions were notably absent in existing legislation and were not included when Law no. 2020-13 was adopted.
• Normalisation of overbroad discretionary powers of the government: We also have serious concerns that Law no. 2021-18 gives overbroad powers to the executive to restrict the rights to freedom of expression and assembly in the absence of a declaration of a state of emergency. Although the legislation mentions that the powers would be exercised to maintain the normal functioning of public services or to protect people, it sets no limit on what those measures might be. Indeed, the examples given include undefined restrictions on freedom of movement and curfews, i.e. the sort of measures that are hardly ever justified in peacetime. Under these provisions, nothing would prevent the government from putting in place highly privacy invasive measures under the pretence that it is necessary to maintain the delivery of public services. In other words, the new law normalises the use of potentially draconian measures at the entire discretion of the executive. In our view, this is in breach of the legality, necessity, and proportionality tests under international human rights law.

ARTICLE 19 is also concerned that this legislation has been accompanied by attacks against journalists who do not “respect the curfew” while covering protests. For instance:

• In March 2020, the day after the state of emergency was declared, many unconfirmed citizens, including two journalists working in Touba, were victims of police violence for not respecting the curfew.
• On the night of 2 June 2020, Radio Futurs Médias in Mbacké was attacked and its buildings ransacked by demonstrators protesting against the curfew and restrictions imposed under the state of health emergency.
• On 24 June 2020, a cameraman from 7TV was brutally attacked by unknown persons while carrying out his reporting activities.

Those responsible for these attacks have not been held accountable. ARTICLE 19 is concerned about these actions and the failure of the authorities to investigate them.

Recommendations

ARTICLE 19 calls on the Senegalese authorities to:

• Repeal Law no. 2021-18 introducing a new Title IV in Law no. 69-029 of 29 April 1969;
• Review its emergency legislation and ensure that it is fully in line with international standards on human rights.
• Investigate attacks against journalists who have been attacked when covering the protests during curfew and ensure that responsible actors are held accountable.