All interventions to fight the spread the COVID19 must have a legal framework to support them before they can have a basis. The World Health Organization which strives to attain the highest levels of health for the people of the world and which declared COVID19 a global health pandemic, owes its creation and mandate to a legal instrument in the name of a United Nations Declaration passed in 1945. Even the social measures established to prevent the spread of COVID19 like social distancing, regular washing and sanitizing of hands find their legal force in laws like the Public Health (Control of COVID19) Regulations 2020 which are made under the Public Health Act 1935. Without this law, the Police and other Security organs would have no basis to enforce anything about COVID19.
So, if the law is fundamental to fight against COVID19 and indeed the law is fundamental to the organization of everything else in the society, why is it that legal services which enable the application of the law are not designated as essential services during the COVID19 lockdown. Isn?t it odd that we should designate Security services like the Army, Police, Prisons and Private security firms which are all involved in the preservation and enforcement of the law and yet we declare legal services provided by the courts and legal practitioners to be non-essential? Aren?t the courts and legal practitioners actually at the apex of a legal system that validates and arbitrates the lawfulness or otherwise of the law enforcement actions taken at all times, with or without a pandemic.
If these legal services are not essential, why does the Police arrest violators of the COVID19 lockdown directives and then wait on Magistrates to open some of the closed courts only to remand the accused without an option of applying for bail, ironically because of the COVID19. I see that the law enforcement at this time without the availability of essential legal services to the public, will promote a lot of illegal detentions and create more legal disputes than it was set to resolve. My suggestion therefore is that legal services should be designated as essential services during the COVID19 lockdown. We can follow the example of South Africa where services related to the essential functions of the Courts, Judicial Officers, Sheriffs and Legal Practitioners required for these cases are now categorized as essential services under their Disaster Management Act 2002.
Next door in Kenya, Legal practitioners have been dropped off the list of the curfew order and are now listed as an essential service under the Public Order Act. This is thanks to the proactiveness and industry of the Kenya Law Society which petitioned the Constitutional Court for this relief. But here in Uganda, our Law Society can not even cause the Courts to open and at least hear one petition regarding the lockdown. Whereas the Uganda Law Society is still in the game, its relevance has been reduced to murmurs from the spectators stands.
Having said that, I still think that in designating legal services as an essential service during the COVID19 lockdown, priority should be given to all urgent cases which affect the overall public health, well being and safety of the citizens, irrespective of whether the cases are directly related to COVID19 or not. It is not only COVID19 that can cause morbidity, harm or death to Ugandans at this time. There are many people and businesses out there who/which are threatened with irreparable damage to their very survival but which cannot access legal services for urgent redress because of the COVID19 lockdown. What is the point of people surviving covid19 only to die from other preventable causes? The Uganda Police reported that by 16/4/2020, there were more than 102 cases of child neglect, abuse and abandonment reported in Kampala. But these children can not get remedies from the Family and Children?s Court because it is closed. In the end, such children will also become victims of COVID19, I mean the socio-economic side effects of covid19, rather than the disease itself.
In conclusion, I wish to state that it may be profane and inaccurate to declare one service more essential than the other during this covid19 lockdown. I think that in the real world, every service depends on the other to function properly. That interdependence cannot even be broken by the COVID19 pandemic. May be what we should be talking about are prioritized services needed in the moment. It is a misnomer to refer to them as essential services to the exclusion of others in my view. To demonstrate this point, we can easily observe that whereas Ambulance services are designated as essential services during the COVID19 lockdown, they still need repair services at garages when they breakdown, but the garages are closed at the moment. The other non-essential service which is actually essential to the 4500 babies born in Uganda every day is baby clothing. However, all shops selling non-food items are closed at the moment. Wouldn't you agree with the celebrated English judge, Lord Denning who once remarked that the law is an ass!
By Fred Muwema
Muwema & Co Advocates21 April 2020