Human rights in times of crisis: the case of COVID 19 in Uganda

Abstract

In crisis situations, states can limit rights without declaring a state of emergency or derogate from human rights after declaring a state of emergency. Agamben traces the practice of electing a temporary dictator to offer ad hoc leadership in a national emergency to the Roman Empire.14 Following the Second World War, Clinton preconized the advent of a dictator of a constitutional nature that is limited in time, with the mission to preserve the constitutional order and who remains within constitutional boundaries.15 He argued for a de facto normalization of emergencies, in the sense that states of emergency have become 'the dominant paradigm of government in the 20th century' where, the state of emergency is not a state where law continues to be created, although without democratic methods, but a true state of anomie, or space without law. Scott P. Sheeran notes that the state of emergency is now a frequent practice in all parts of the world.17 Modern constitutions provide in overwhelming numbers the possibility to declare a state of emergency and do so by equipping the constitutional architecture of the state with certain boundaries and built-in safeguards with parliamentary oversight. This prohibition seems to confirm the conservative nature of states of emergency which derives from the Roman archetype,18 whereby in cases of emergency the senate could entrust the consul to appoint a dictator with the power to enact the necessary actions (suspend rights, engage military action or suppress insurrection). The conservative aspect of emergency powers in the Roman experience was inherent like the emergency dictator's office, which was limited to six months, after which the dictator was expected to step down and the status quo ante to be restored. Posner and Vermeule revisited the issue of emergency powers,19 claiming that the exercise of emergency powers by the executive became unbound, especially after the 11 September terrorist attacks in the United States of America. The executive is the only state organ that has the resources, power, and flexibility to tackle an emergency while balancing it with civil liberties. The executive seems therefore to be the best and perhaps the only institutional actor that can manage emergencies of a security character. They therefore advocate for an 'unbound executive' power in times of crisis