Rights and Freedoms: Having Them Protected While Not Abusing Them during COVID-19 Lockdown

Guest Post by Zwelithini Matsoso

Photo by Adli Wahid on Unsplash

The novel CoronaVirus (COVID-19) pandemic scale and severity on public health forces governments across the world to implement tough measures that change individuals’ way of living. Some changes are difficult to get used to but are necessary in arresting the transmission of COVID-19.

The Government of the Kingdom of Lesotho likewise, and on the guidance of the World Health Organisation (W.H.O), as part of its preparedness and response to COVID-19 and in the interest of public health and lives, had to introduce s(23) of the Lesotho Constitution of 1996[1] to declare a state of emergency, correspondingly introduce the Public Health Order No 12 of 1970 s16(a)[2] which mandates enforcement and imposition of isolation during surveillance of infections like COVID-19.

Imposition of isolation known as the 21 day lockdown intends to limit close and frequent contact of people thus arresting the transmission of the virus in the event that people become crowded in one space or meet with people who may unknowingly be infected, probably some without symptoms arising from infection. The 21 day lockdown offers a window period for symptoms to reveal on those that are infected while halting the transmission of the virus to other people. (however it must be noted that the virus spreads even when symptoms are not traceable.)

Lockdowns are highly crucial, however, enforcement of lockdowns have, since implementation, created human rights violation fears by those with a duty to protect such rights and by those with a duty to enjoy them.  It is important therefore that we create during this lockdown, a Lesotho human rights-COVID-19 library, which will remind us the rights and freedoms that civilians are entitled to, the obligations of the state and our responsibility in ensuring that our rights and freedoms are protected and that as civilians the rights and privileges we have are not abused such that abuse can result in putting other people’s lives at risks of infection.

1Your right to life

Before anything else, we need life so we can enjoy being on earth. Everyone wants to live life and all that it presents to us; party, love, contribute, share happiness with others and “most importantly be there for those who need support.” That’s why people care so much about life.

S5(1) of the Constitution[3] provides that “Every human being has an inherent right to life. No one shall arbitrarily be deprived of his life.” This is a two way street which calls for responsibility from civilians to do all such that does not create a risk for other people’s lives by obeying measures in place to combat the COVID-19 pandemic, correspondingly, the duty bearer; Government, has an obligation to ensure that it guarantees everyone highest standard of public health which ultimately saves our lives.

2Your right to health

Right to health contributes to a fulfilled, productive and an enjoyable life, therefore this right is not a luxury but an important necessity. No doubt, COVID-19 will come with a lot of stigma and discrimination, sometimes being a retaliation and defense of healthcare workers who lack personal protective equipment (PPE), the same fearing to infect themselves and their families by being in contact with suspected COVID-19 patients.

However one has to know that even under such circumstances healthcare is a right that should be accessible without stigma and discrimination as protected by our Constitution which s18(2)[4] of it provides that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.”

Be that as it may, the right to health sadly is looked at the patient level mostly, ignoring those at the frontlines of resuscitating lives, those being healthcare workers. They too have a right to health and that starts with the employers delivering the end of their bargain by ensuring that healthcare workers are protected at all times.

3Your right to just and favourable conditions of work

Employees designated as essential services staff unlike most civilians are spared from the lockdowns because they are in-service and at risk. It remains their right however as enshired in S(30) of the Constitution and the Labour Code Act of 1992[5] to have “safe and healthy working conditions.” The risks to exposure of COVID-19 are real and if employers fail to prioritise the safety of employees, the employer is clearly violating employees rights.

4Freedom of movement and inhumane treatment

The S7(1) of the Constitution[6] provides that “every person shall be entitled to freedom of movement; that is to say the right to move freely throughout Lesotho, the right to reside in any part of Lesotho, the right to enter Lesotho, the right to leave Lesotho and immunity from expulsion from Lesotho.”

However, there are COVID-19 applicable limitations on the freedom of movement and this are enshrined in ss(a) of the Constitution which upholds that imposition on restrictions of movement shall not be held in contravention of S7(1) if such a restriction is in the interest of public safety, public order and public health.

The Government has in operationalising of the state of emergency supplementarily issued a Government Gazzette No. 24 of 2020[7]. S3(c) of the Gazzette permits individuals to leave residential areas except in extreme circumstances specified in public health regulations which are to access “essential services” such as buying groceries, seeking medical attention or accessing critical banking or financial services within specified times (as amended) those being 7am to 4pm for mobility of public transport , 8am to 2pm for grocery stores and 24hours for petrol dealerships, pharmacies and health centers.

S(5) of the Notice further gives members of the Lesotho Defense Force (LDF) and Lesotho Mounted Police Service (LMPS) mandate to enforce and operationalise the gazetted notices upon the commencement of the declaration.

Day 1 of the lockdown in Lesotho, however witnessed civilians sharing photos and videos of LDF and LMPS members torturing civilians. Hence, that triggering compilation of this library of rights, freedoms and obligations the state has towards the civilians. Police Act of 1998 s(4)[8] and the Constitution s(146) (1) are in congruent with each as far as ethical conduct of protecting not torturing civilians is concerned.

The LDF will “maintain internal security” and the police will “maintain law and order” whilst ensuring “that peace and protection over life is preserved and offenders are brought to justice.”  Clearly protection of civilians in a humanly positive way must be the first priority of the law enforcement agencies. The above is further reinforced by s8(1) which provides that “no person shall be subjected to torture or to inhumane or degrading punishment or other treatment. The Office of the United Nations Commission for Human Rights (OHCHR) also issued a Human Rights Standards and Practice for the Police[9] which upholds that “there must be prohibition of torture and cruel, inhuman or degrading treatment during states of emergencies and also to ensure that there are no damages or injuries during use of force as second attempt to arrest.

What to do when your rights have been violated

  • Report to the relevant body: The truth is some professions value their integrity and would not risk to have it soiled hence professional bodies exist for such purposes. First tier of reporting a violation is to probably lodge a complaint with the Institution that the violator belongs to for example report the Nurse to the Nursing Council or the Police to the Police Complaints Authority (PCA) however the PCA for its lack of independence and disfunctionality it maybe advisable to implement step B below without engaging the PCA. Some institutions may investigate and subject their employee to a disciplinary process, yet, some Institution may want to cover up the complaint or even be in defense of their personnel hence its important to have plan B always.
  • Approach the Courts of law: Sometimes the Institutions may fail to discipline their members or the violation may have caused serious damage that requires being restored to the original position things were before. The Courts of law may provide relief.
  • Mass media and Social media mobilisation: The wrath and anger of the society today serves as the most fast and loyal judge to many social ills. Publishing those human rights violations on social media and even on traditional media platforms like newspapers and radio can work to shame and expose those perpetuating violations, however it is important to ensure that what is published is factual.
  • Reporting to International Organisations: Lesotho’s Constitution pronounce it as a sovereign state. However, that does not mean other countries and human rights organisations are not acting as watchdogs over the operations of the country which if can go un-monitored their spillage could cause harm to the neighbours. So not just Basotho are concerned about the actions of local state operations.

In cases of human rights violations in an employment setting, it is important to report such to the International Labour Organisation (ILO) through trade unions registered with the ILO as per article 26 to 34 of the ILO Constitution. Lesotho is a member of the African Commission on Human and People’s Rights (ACHPR) and is tasked with promoting and protecting human and people’s rights throughout the continent. The Commission considers Non-Governmental Organisations (NGO’s) and Individuals complaints on the contraventions of African Charter on Human and People’s rights.

Lesotho beyond being a member and ratifying procedures to file complaint to the above, the United Nations Human Rights Committee (UNHCR) also exists which similarly to the ACPHR accepts complaints from both NGO’s and individuals however it may not decide on individual cases unless there are constant and gross systematic human rights violations. Lastly, Lesotho has joined the International Criminal Court (ICC) which can intervene in severe cases such as genocide, crimes against humanity and war crimes.

[1] Constitution of 1966, 1 of 1993, s(23), Chapter II.

[2] Public Health Order, No 12 of 1970, s(16), ss(a); Chapter II.

[3] Constitution of Lesotho, No 1 of 1993, s(5), ss (1); Chapter II

[4] Constitution of Lesotho, No1 of 1993, s (18), ss (2), Chapter II

[5] Labour Code, No 24 of 1992, s(30) Chapter III

[6] Constitution of Lesotho, No 1 of 1993, s(7), ss(1), Chapter II

[7] GN 26 of No. 24, 27/03/2020; 210

[8] Police Service Act, No 7 of 1998 s(4), Chapter III

[9] Office of the United Nations High Commissioner for Human Rights (2004) (7) Human rights standards and practice for the police; expanded pocket book on human rights for the police. 33.