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Emergency law responses and conflict-affected states in transition

Emergency law responses and conflict-affected states in transition
Photo: Mat Napo/Unsplash
Sean Molloy, Christine Bell, Asanga Welikala, Erin Houlihan and Kimana Zulueta-Fülscher

Ahead of the 2021 Stockholm Forum on Peace and Development, SIPRI is pleased to share guest blog posts from partner organizations. This is a shortened version of a blog that was originally published on Verfassungsblog.

Some type of emergency law response to Covid-19 has been used in most states. However, conflict ‘fault lines’ can mean that the ways in which countries use the law has the potential to undermine transitions from conflict to peace and authoritarianism to democracy. This short post identifies a number of key areas where emergency law responses potentially conflict with or undermine efforts to transition. This post serves as an introduction to some of the wider themes discussed in the 2021 Stockholm Forum session hosted by the Edinburgh Centre for Constitutional Law, International IDEA and the Political Settlements Research Programme.

 

The rule of law

In transitional societies, building the rule of law is often key to conflict resolution. The legal foundations for Covid-19 emergency measures are crucial to whether they support or hinder democratic development. Covid-19 responses have revealed the different approaches states take to institutionalizing them. States like Ethiopia and Mali have declared a constitutional state of emergency. This entails adopting emergency measures within defined parameters laid out in a constitution. Some countries, including Nepal, Myanmar and Kenya, have relied on existing legislation. This means that existing laws, often public health legislation, grants the executive certain powers to respond to the pandemic. In different ways and to varying degrees, these models support the countries’ transitions in that executive powers remain within existing legal frameworks. In other cases, however, states have exerted emergency powers with no clear legal basis. Somalia and Sudan have each taken measures to combat Covid-19 without any reference to specific legal instruments. During the early stages of the pandemic, the Sri Lankan government imposed an island-wide lockdown with no clear legal basis. Such potentially extra-legal responses may undermine progress to strengthen the rule of law.

Executive powers and institutional safeguards

In some cases, executives appear to have used the pandemic as an excuse to consolidate power. In Sri Lanka, President Rajapaksa flatly refused to recall parliament, which had been dissolved ahead of elections, despite a constitutional requirement to do so in circumstances like the pandemic. The Sri Lankan Supreme Court, in what appears to be an act of extreme deference to the executive, also denied leave to proceed to multiple challenges against the president’s refusal to act according to the constitution. The result was that the pandemic facilitated an executive takeover of the state.

Although some restriction of rights is necessary and legitimate in response to the pandemic, in transitioning societies, infringements of rights can be a point of tension and potentially conflict. Expanded executive powers can also lead to human rights violations, which in some contexts have implications for the conflict landscape. For instance, when certain sections of the population have their rights protected while others do not, it can trigger conflict. Peace negotiations thus place human rights centre stage to ensure that the same violations that precipitated a conflict, and could lead to its renewal, are not replicated.

Transitioning societies also work towards establishing checks and balances on power. However, the evolving nature of this process means that institutions such as the judiciary do not always have the capacity to constrain executive power. Some states previously in transition have seen democratic backsliding both prior to and during the pandemic, and leaders seeking to further consolidate power by minimizing the capacity of state institutions to curb executives. Examples include Sri Lanka and the Philippines. In other cases, state institutions are still evolving and thus have limited capacity to constrain executive power. For example, in the Democratic Republic of the Congo, observers have speculated on whether the constitutional court is broken, since it failed to rule unconstitutional President Tshisekedi’s failure to obtain approval for a state of emergency from both the senate and the national assembly, as required by law.

The limited role of institutional oversight can be also explained by a lack of progress in establishing the institutions necessary to contain executive action. For instance, a State of Health Emergency was declared in Sudan, supported by Articles 40 and 41 of the constitution. The declaration is nullified if the legislative council does not ratify it. However, Sudan does not currently have a legislative assembly.

Elections

Elections have also interacted with Covid-19 and conflict dynamics in unpredictable ways. Often, Covid-19 dynamics have often not been a decisive element in what has emerged, but nonetheless have been an important part of the context. In Ethiopia, parliamentary elections were originally planned for 29 August 2020. As a result of the pandemic, the national electoral board announced that elections would be postponed. Although the postponement was widely acknowledged as necessary, it was seen as particularly benefiting the federal ruling party. Some opposition groups, particularly the Tigray People’s Liberation Front (TPLF), considered the decision to be ‘gamed’. This exacerbated the political contestation between the federal government and Tigray politicians, who resigned after accusing Prime Minister Abiy of authoritarian tendencies. The delaying of elections, therefore, fed into an already volatile political climate and subsequently catalysed renewed conflict.

In the Central African Republic, presidential and legislative elections were respectively due in December 2020 and March 2021. In March 2020, it became evident that it would not be possible to safely hold the elections by the constitutionally required deadlines. The 2016 constitution, however, imposes a two-term limit on the presidency and prohibits any form of extension (Article 35); it also prohibits amendment to the term limit provisions (Article 153). While the Constitutional Court subsequently ruled that a proposed amendment to extend the presidency was unconstitutional, the example demonstrates how the pandemic has revealed ambiguities in nascent constitutional arrangements, which can destabilise already fragile governance arrangements.   

Subnational governance

Covid-19 response problems can stem from complex political and constitutional arrangements on multi-level governance that flow from a political settlement. For instance, Bosnia and Herzegovina’s fragmented state structure has made crisis management challenging, as the country failed to establish a central organization to coordinate the crisis response. Declarations of a state of emergency were introduced separately on 16 March 2020 in the Bosniak-Croat Federation (state of disaster) and the Serb Republic (state of emergency); while the next day a state-wide state of disaster was introduced. This has established competing and overlapping legal frameworks without a clear understanding as to which laws prevail. Territorial power sharing arrangements can thus contribute to confusion as to which laws apply and complicate coordination between different layers of governance.

Tensions can also emerge when the emergency law response is predicated on laws that predate the new territorial political settlement. In Nepal, federalism emerged as a hard-fought agenda of the peace process, which was inked into the 2015 constitution. Despite this, Nepal’s federalization process is incomplete and many political parties continue to be ‘reluctant federalists’, averse to fundamentally transforming the centralized system. Nepal enacted its Disaster Risk Reduction and Management Act 2017 as one the first sectoral federal laws after the promulgation of the new constitution. This act defines a pandemic as a non-natural disaster. It sets out the institutional mechanisms for disaster management from federal to local level, with clear roles and responsibilities given to each level of government. Nevertheless, in response to the pandemic, the Nepali government instead invoked the Infectious Disease Control Act 1964. This Act is broad, lacks specificity, and is indiscriminate in terms of what is permitted. Most importantly, it does not specify the distribution of powers between the different levels of government, making it difficult to implement in the new federal system.

Militarizing the state

Many countries have increased the role of the military in response to the pandemic. While resorting to military capacity is legitimate, in some cases it operates as an extension of problematic pre-pandemic efforts in some countries to further militarize what are civilian roles. For instance, in the Philippines, the pandemic response has been highly militarized, with security forces detaining thousands of people for violating curfew and killing many individuals. President Duterte has deployed police and military forces to enforce emergency measures, including issuing the military with shoot-to-kill orders against those violating lockdown rules. In Sri Lanka, a pre-existing process of militarization of the civil administration has been accelerated by the pandemic.

In other cases, the use of the security apparatus is problematic for transition because of the military’s role during and prior to conflict, and potential disruptions to ongoing security sector reform efforts. For instance, an unfinished aspect of Nepal’s peace process has been the agenda of democratization of the Nepal Army. Processes have focused on ensuring civilian control of the army and its compliance with human rights. However, the government has used the army for many aspects of the pandemic response. For example, the army, rather than the health ministry, was put in charge of procuring medical supplies, and setting up and managing quarantine centres.

Although many countries called upon their security forces to help manage the pandemic, securitizing the response can erode the quest for building constitutionalism and peace in transitioning settings.

ABOUT THE AUTHOR(S)

Sean Molloy is a lecturer at Northumbria Law School and an Associate of the Political Settlements Research Project.
Christine Bell is Professor of Constitutional Law and Assistant Principal (Global Justice) and a member of the British Academy.
Asanga Welikala is Lecturer in Public Law at the School of Law, University of Edinburgh, and the Acting Director of the Edinburgh Centre for Constitutional Law.
Erin Houlihan is a programme officer with the constitution building programme at International IDEA.
Kimana Zulueta-Fülscher is Acting Head of International IDEA’s Constitution Building Programme.