THE DOCTRINE OF ESSENTIALITY OF LEGAL SERVICES DURING PANDEMICS
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THE LEGAL PERSPECTIVES OF UGANDA'S RESPONSE TO COVID-19 CONTAGION AND THE DOCTRINE OF ESSENTIALITY OF LEGAL SERVICES DURING PANDEMICS: CASE STUDIES OF KENYA, RWANDA, SOUTH AFRICA AND AUSTRALIA
A PAPER PRESENTED TO TRANSNATIONAL HEALTH LAW MODULE (WIR884) STUDENTS AT CARL VON OSSIETZKY UNIVERSITY OF OLDENBURG IN GERMANY VIA E-LEARNING.
MODULE LECTURER
DR. VICTORIA CHEGE (LL.M EUR, LL.M), (CHAIR OF EUROPEAN AND INTERNATIONAL ECONOMIC LAW, CIVIL LAW)
PREPARED AND PRESENTED BY
ALBERT COLLINS KYEYUNE
(GUEST LECTURER)
JUNE, 2022
The legal perspectives of Uganda's response to COVID-19 contagion and the doctrine of essentiality of legal services during pandemics: Case studies of Kenya, Rwanda, South Africa and Australia
By
Albert Collins Kyeyune(1)
“…Coronavirus pandemic was a world-changing event, like the USA, 9/11. There was a world before Covid-19. And there will be a world after Covid-19. But it won't be the same.
‒ Oliver Markus Malloy.
Abstract
This paper explores the legal perspectives of Uganda's response to COVID-19 contagion. In so doing it navigates through the legal approaches Uganda employed in the implementation of the measures adopted to mitigate the challenges posed by COVID-19. It capitalizes on the Presidential directives issued by His Excellency Yoweri Kaguta Museveni, as the commander in Chief and head of Government in Uganda. This paper also conducts an analysis of the applicability of the different available approaches that ought to have been adopted using the 1995 Constitution of the Republic of Uganda, as amended and the Public Health Act, Cap. 281 that gave raise to several Public Health Instruments as a yard stick. It demystifies the challenges and ambiguities, of the different Public Health legal Instruments passed by the Republic of Uganda under Ministry of Health in the process. The paper further explores the legitimacy of the different Presidential directives and the restrictions or rights limitations imposed as a result. The paper explores further both Uganda‟s national and international obligations during pandemic outbreaks taking case studies of Kenya, Rwanda, South Africa and Australia. The paper ends by discussing the lawyer‟s noble profession, role in pandemics, the doctrine of essentiality and how it correlates with the doctrine of interdependence and convenience of professions.
Key Words: COVID-19, Presidential directives, Public Health Legal Instruments, doctrine of essentiality, interdependence and convenience.
1.0 Introduction and Background:
Throughout the course of history, disease outbreaks have ravaged humanity. They have sometimes changed the course of history in particular Countries, regions or continents, and at times signaled out a likelihood of the end of the world. But, most of these outbreaks always had defined causes, origins or even common effects. Coronavirus that causes COVID-19 was, and is still a world shattering event that is strange; especially with the scary way it spreads and continues to affect human kind.
As desperate times call for desperate measures, in the bid to respond to the fast emerging global public concerns, world governments devised different health regulations in order to deter the spread or mitigate the effects of the deadly Contagion. Uganda is one of the Countries that enacted different regulations that ushered in a new status quo in the legal business environment of the World at large. What is unique about Uganda‟s legal measures is that they emanate from Presidential directives, despite Uganda being a Presidential Republic. Uganda‟s Presidential directives can never be taken lightly for they ushered in a new era of human conduct and have highly been debated for having had far-reaching implications to different kinds of human rights.
1.1 The National Perspective Response:
In a bid to tame the spread of COVID-19, Uganda registered specific Presidential directives that crowned national wide lockdown of almost all sectors and services including legal services leaving just a handful categorized as essential services to continue operating under strict operating procedures. Declaration of a national wide curfew which was made in intervals but run for almost a period of two years in addition to limitations on freedom of movement during day time become one of the unsettling events that can never be forgotten. The different Presidential directives and restrictions were justified as measures to curb the spread of the novel coronavirus(2). An analysis into the legal justification of the Presidential directives is required in order to ascertain whether they were based under a well-established legal regime or instrument.
1.1.1 Justification under the 1995 Constitution of the Republic of Uganda, as amended:
The 1995 Constitution of Uganda(3) which is the grand norm vests all the executive authority in the presidency to uphold, safeguard the Constitution and laws of Uganda, promote the welfare of the citizens, and protect the territorial integrity of Uganda. Uganda is a Presidential Republic, in which the President of Uganda is both the Head of state, and Head of government(4). It is important to note that all presidential as well as semi-presidential Constitutions vest their Presidents with some agenda-setting and legislative initiative powers justified under a specific law. However, newer presidential Constitutions, especially those in Latin America, tend to give more explicit legislative initiative powers to Presidents. Ceremonial Presidents on the other hand, in parliamentary systems typically do not possess legislative or agenda-setting powers, or possess them only to a very limited degree(5). This reflects the fact that Prime Ministers, rather than Presidents, are expected to exercise policy leadership in such systems(6). Uganda that is governed under a Presidential system of governance does not have a specific law on Presidential Directives notwithstanding, the fact that, it is a Presidential Republic. The attempts to come up with a similar law happened in 2013, where an equivalent bill was tabled before the legislative arm but nothing materialized out of it (7).
1.2 Declaration of a State of Emergency:
It follows therefore that, for the presidential directives to attain the requisite legitimacy, an appropriate legal process must be undertaken. The first appropriate legal process is established under Article 110 of the 1995 Constitution of the Republic of Uganda, as amended. This requires an elaborate process involving the legislative arm of government. Under Article 110 (1) of the Republic of Uganda, the President is empowered, in consultation with his Cabinet, by proclamation, to declare that a state of emergency exists in Uganda, or any part of Uganda.
To make a declaration of the state of emergency, the President as a perquisite must be guided by three parameters that: i) Uganda or any part of it is threatened by war or external aggression; or ii) the security or the economic life of the Country or a part of it, is threatened by internal insurgency or natural disaster; or iii) there are circumstances which render necessary the taking of measures which are required for securing the public safety, the defence of Uganda and the maintenance of public order, supplies and services essential to the life of the community. In case of Covid-19 for the case of Uganda, the third parameter, would be the most adequate to form a basis for such a proclamation.
However, the President would be required to cause the proclamation, declaring the state of emergency to be laid before Parliament for approval as soon as practicable, and in any case not later than fourteen days after its issuance(8), and the state of emergency would remain in existence for not more than ninety days(9). This is exactly where parliamentary involvement is by law required.
But again, Section 3 of the Emergency Powers Act(10) provides for passing of regulations by the Minister, which may be expedient for inter alia securing the public safety and for maintaining supplies and services necessary to the life of the Community during the 90 days of the state of emergency.
1.3 The necessity of declaring a state of emergency:
Just to pose an intriguing question; was it necessary to declare the state of emergency in Uganda following COVID-19 breakout? In answer to this intriguing question, I appreciate the wise views of Dr. Busingye Kabumba(11), that it was necessary to declare the state of emergency‟. However, I would like to agree with Dr. Ben Kiromba Twinomugisha(12) who opines that:
“Declaring a state of emergency is constitutionally allowed under articles 46 and 110 of the 1995 Constitution of the Republic of Uganda but that should be done as the last expedient. That is when all other options such as proceeding under the Public Health Act and regulations made therefrom have proved futile. At the moment, in light of the cases of COVID-19 registered and infections not swiftly increasing, one cannot conclude that the life of the Country is at risk to necessitate a declaration of the state of emergency. It is a factual truth that COVID-19 has resulted in social-economic strain but the government is on the right truck to contain the situation. What the public has to do is to observe the public health guidelines, including social distancing, washing hands, staying at home and obeying the curfew. Government also should increase interventions to cater for the vulnerable groups in terms of health care, food etc. On reading Article 46 of the Constitution of Uganda strictly, it also comes out clearly that government can suspend all human rights and freedoms without necessarily declaring a state of emergency (sic)…..”(13)
It therefore comes out verbatim from the foregoing analysis, that it was not only unnecessary but also unwise for government to declare a state of emergency at the point in time. I am convinced that the public health legislations in Uganda were reasonably robust enough to guide in any similar pandemic outbreak.
1.4 The Process under the Public Health Act:
The second option to legitimize the Presidential Directives emanates from Sections 10, 11, 27, 36, 68 amongst others of The Public Health Act, Cap. 281. This is exactly what the government of Uganda adopted to justify the enactment of several Public Health legal Instruments as well as legitimize and regulate the Presidential Directives.
Under the respective provisions of The Public Health Act(14), the Minister of Health is empowered to take measures to combat the spread of an infectious disease. Between 20th April 2020 to 5th May 2020, indeed several Public Health legal instruments were enacted following the different Presidential Directives. These statutory instruments are detailed in content separately to wit:
1.5 The Premise of Statutory Instruments under the Public Health Act:
The Minister of Health in Uganda passed several instruments whose premise is enlisted thus: 1) The Public Health (Notification of COVID-19) Order, 2020(15). Under this Order, Covid-19 was declared a notifiable disease to which the provisions on prevention and suppression of infectious diseases under the Public Health Act (Cap. 281) apply; 2) The Public Health (Prohibition of Entry into Uganda) Order, 2020(16); this prohibited the entry of any person, animal or article into Uganda through any of its borders except vehicles or aircrafts entering for the conveyance of cargo into the country and those of the United Nations Organization or other humanitarian organization with effect from 23 March 2020 to 23 April 2020. These regulations were extended in operation based on the lockdown-extension intervals; 3) The Public Health (Prevention of COVID-19) (Requirements and Conditions of Entry into Uganda) Order, 2020(17); this order stipulated conditions for entry into Uganda. The Order was meant to remain in force until notification of its expiry by the Minister of Health; 4) The Public Health (Control of COVID-19) Rules, 2020(18); this imposed measures for the control and prevention of Covid-19; 5) The Public Health (Control of COVID-19) N0.2) (Amendment N0.2) Rules, 2020), this sought to amend Statutory Instrument No. 55 of 2020, to add hardware shops, motor repair garages and workshops (carpentries and wood workshops and metal fabricators to operate with set precautions), factories, construction sites, workshops, restaurants also to operate while observing strict social distancing guidelines. The regulations in the twist of events also allowed legal service under Uganda Law society as an umbrella organization of practicing lawyers in Uganda to operate but not to exceed 30 vehicles on any given day and insurance services as well were added on the list of essential services. The regulations also made wearing of facial masks mandatory while outside one's place of residence(19), which was a positive move.
1.6 Challenges and Ambiguities with Public Health Legal Instruments:
There are evident challenges and ambiguities between the Presidential Directives and the structure of the Public Health Legal Instruments. Some of the challenges are reflected in form of premature enforcement before enactment of a requisite respective legal instruments as a requirement of the law. Many times, arrests and detentions of innocent Ugandans by the security personnel were conducted before the Presidential Directives would be enacted into a respective legal instrument. This certainly tantamount to violation of the rule of law. It should be noted that the Presidential Directives by themselves are mere policies without any force of law and therefore, as a must before their implementation a relevant legal instrument must be in place.
In other cases, the respective statutory instruments, did not offer complete, clear and decisive scope to some central definitions like; social distancing in terms of the number of meters required to be observed, when one is in a public place or on a gathering kept in balance for a long time. Other central definitions like curfew, mask and COVID-19 itself, were not clearly provided in the respective instruments. The instruments also ought to have provided standard operating procedures for use in different places like offices and businesses, whether public or private. These anomalies among others posed a threat towards rule of law observance especially when it came to enforcement of the instruments by the security personnel amidst orders from above.
Besides, the Health (Notification of COVID-19) order, 2020, Statutory Instrument No. 45 of 2020, required the landlord, employer and/or a head of a household, to notify a medical officer or take a person he/she has become aware of suffering from COVID-19 for treatment. This provision was purely ambiguous without guiding parameters. The provisions should have provided guiding symptoms giving rise to reason to suspect a COVID-19 case. The provisions in this order in effect remained as a catalyst to suspicion.
The mandatory 14 days institutional quarantine was also a suspect. Although legally embedded in the statutory instruments, it risked violation of peoples‟ rights to personal liberty. In this case the framers of this requirement should have sought towards facilitating individual isolation as opposed to institutional quarantine.
Again, the statutory instruments provided only custodial sentences as opposed to non-custodial sentences like; community service, payment of fines, caution or apology, which are by far encouraged under the well thought of sentencing guidelines put in place to guide in general criminal law sentencing procedure. Possibly, the sentencing powers were left in the hands of pre-siding Judicial Officers, making it difficult for proper administration of justice without bias engineered by the unfettered discretion.
There were many specific areas that required urgent attention in order not to compromise rule of law. For example, there were many changes and new aspects, which were issued under the continued Presidential Directives after the legal instruments but they continued to be implemented without any force of law. Other areas that were key are; ensuring protection of the threatened non-derogable rights such as the right to a fair hearing by providing a clear and robust framework for the judiciary and lawyers to function properly; The question of continuity of employment of different categories of persons and the right to payment of wages at different work place during the period of lockdown; The question of landlord-tenant relationship and the obligation to payment of rent, payment of mandatory periodical fees and taxes including payment of utility bills during the span of the lockdown were totally overlooked.
1.7 The legitimacy of the Limitations imposed by the Presidential Directives:
It is important to establish whether the restrictions imposed by the Presidential Directives were not in conflict with rights and freedoms as enshrined in the several Articles of the grand norm of the land and other related Acts of Parliament.
I find a lot of comfort in the timely writing of Prof. Ben Kiromba Twinomugisha(20), where he states that; “the Constitution is clear: In the enjoyment of his or her rights and freedoms, „no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest”(21) . Prof. Ben posits that a person who has tested positive for Coronavirus wouldn‟t complain that his or her right to liberty has been violated after being quarantined or put into isolation. That person‟s rights to liberty and movement may justifiably be restricted for reasons of preventing him or her from infecting others with the deadly virus, failure of which directly results in violation of others‟ right to life. In effect, a person can be justifiably disadvantaged of his/her right to liberty „for the reason of stopping the spread of a transmissible or communicable disease‟(22).
Prof. Ben further asserts that within the provisions of the Constitution(23), public interest shall not permit „any limitation of the enjoyment of the rights and freedoms‟ that is „beyond what is acceptable and demonstrable justifiable in a free and democratic society, or what is provided in the Constitution‟.
It is clear from the foregoing, that the Presidential Directives were legally based with the ultimate goal of promoting the welfare of the citizens and protecting the territorial integrity of the Country. It is also true that some Presidential directives were implemented before the respective statutory instruments would be enacted. Amidst, self-explanatory emergency situations, what remained critical were for the agencies which were entrusted to implement the Presidential directives to continue executing their actions within the confines of the law. It is unfortunate that a number of cases involving violations of freedom from torture, cruel, inhuman and degrading treatment by the enforcement agencies were registered in the process(24).
The case of Hon. Francis Zaake who was tortured by the security personnel after his arrest on charges of allegedly distributing food to his neighbors, against the directives of the President, can never be forgotten easily(25). It should be appreciated that security agencies execute a vital role of keeping law and order, but in executing their duties, it is imperative that they accept to continuously and sufficiently be guided by the law especially Article 20 (1) of the Constitution of Uganda 1995 (as amended), which mandates them to respect, uphold and promote human rights. This will keep a good image of the security agencies and the Country at large.
The case of a junior lawyer, Brian Bakampa(26) also deserves a mention. Brian attempted to petition the President for food bailout, something that the security personnel misconstrued as an insult and had him detained beyond 48 hours. If it was not for the public outcry, he would have continued in the humiliation of the police for more days, which amounted to total violation of his rights, inhuman and degrading treatment.
1.8 Response to Human Rights Violations during COVID-19 Lockdown:
The President of the Republic of Uganda must be commended for strongly castigating the security personnel especially the Local Defence Unit (LDUs), against misinterpreting his directives on enforcement of the lockdown. Addressing the nation on the 8th April 2020, the President in his address wondered why the security personnel were beating people like cows. He warned the security personnel to enforce the directives in accordance with the regulations establishing them(27). He further warned the security personnel to act within the law. To him, “beating people is….giving the Ugandan security forces a bad image in the whole world. It weakens the security as beating people is illegal and pointless with no reason. It also isolates Uganda both nationally and internationally”(28).
Again, it was a positive move by His Excellency, Yoweri Kaguta Museveni to pardon 833 prisoners in an attempt to decongest the prisons, as one of the government measures to fight against COVID-19(29). The Constitution under Article 121(4) provides that: The President may, on the advice of the committee [Prerogative of Mercy committee], grant to any person convicted of an offence a pardon either free or subject to lawful conditions; grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him or her for an offence; substitute a less severe form of punishment for a punishment imposed on a person for an offence; or remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account of any offence.
Incidentally, there was little involvement of Parliament as the legislature and second principal organ of government. It perplexes that the participation of Parliament was only seen at large in the fracas of the embattled 10 Billion, it appropriated to itself. This resulted in a legal battle arising from Misc. Cause No. 78 of 2020; Hon. Gerald Karuhanga vs. The Parliamentary Commission and the Attorney General. In this case the High Court of Uganda slapped restraining orders on the Parliamentary Commission requiring it to delay the remission of Uganda shillings 20 Million appropriated to individual Members of Parliament or require members of Parliament who had received it to return it to the Commission or surrender the appropriated sum to the district task forces or the national task forces respectively.
The less involvement of Parliament in the fight against COVID-19 left the executive with a one man show yet COVID-19 was and remains an issue of great public concern, where all arms of government must have been at issue and central to overseeing the wise direction in order to facilitate the great success for our Country. I am hoping that the one-man-show by the Executive did not compromise the good initiatives rolled out. But I will not venture into this debate for I would be inviting another theory not subject of this paper.
1.9 International Perspective Response to COVID-19:
1.9.1 Uganda‟s International Human Rights obligations in the Wake of COVID-19 Response:
Citing concerns with “the alarming levels of the spread and severity”, on March 11, 2020, the World Health Organization (WHO) declared COVID-19 – caused by a novel and contagion Coronavirus as a global pandemic and a Public Health Emergency of International Concern. The WHO amidst its declaration called for governments to take urgent and aggressive action to stop the spread of the virus(30). This vested on Uganda, universal measures to stop the spread of the virus. In this case, Uganda was obliged to abide to all, the international human rights obligations putting in place different measures to combat COVID-19 but also to act appropriately in their implementation. This part takes into account Uganda‟s international human rights obligation in the wake of the COVID-19 response.
1.9.2 International Human Rights Obligations: The Countries‟ Role under COVID-19:
International Human Rights Law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it(31). International Human Rights Law further recognizes that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis and, are strictly necessary, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective(32).
Realistically, the scale and severity of the COVID-19 pandemic clearly rises to the level of a Public Health threat that could justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement. At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harms that can come from the imposition of overly broad measures that do not meet the above criteria(33).
1.10 Acceptable and Justifiable International Standards:
Under the International Covenant on Economic, Social and Cultural Rights (ICESCR), which most Countries including Uganda have adopted(34), everyone has the right to the highest attainable standard of physical and mental health. Governments are obligated to take effective steps for the prevention, treatment and control of epidemic, endemic, occupational and other diseases(35).
The United Nations Committee on Economic, Social and Cultural Rights which monitors state compliance with the covenant states in detail that;
“The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health”(36).
In effect the right to health provides that health facilities, goods, and services should be available in sufficient quantity; accessible to everyone without discrimination, and affordable for all, even marginalized groups; acceptable, meaning respectful of medical ethics and culturally appropriate; and scientifically and medically appropriate and of good quality.
The Siracusa Principles(37), adopted by the UN Economic and Social Council in 1984, and UN Human Rights Committee general, comments on state of emergency and freedom of movement provide authoritative guidance on government responses that restrict human rights for reasons of public health or national emergency. Any measures taken to protect the population that limit people‟s rights and freedoms must be lawful, necessary, and proportionate. A State of emergency needs to be limited in duration. Any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalized groups.
The Siracusa Principles specifically state that restrictions should, at a minimum, be: provided for and carried out in accordance with the law; directed toward a legitimate objective of general interest; strictly necessary in a democratic society to achieve the objective; the least intrusive and restrictive available to reach the objective; based on scientific evidence and neither arbitrary nor discriminatory in application; and of limited duration, respectful of human dignity, and subject to review.
1.11 Analytical Thoughts:
It is energizing to commend the Government of Uganda for having observed to a reasonable magnitude both the national legal regime and various international instruments, stipulating different international human rights state obligations. The Government of Uganda is also commended for reacting faster than most of the enlightened Countries. Initiatives putting in place a robust public health emergency plan and introducing measures in preventing and containing the spread of the virus and for ensuring compliance with such measures amidst it‟s ripping economic and health standards were also observed. As well it is imperative to applaud the decisive and consistent implementation of the measures adopted by the Government and the countrywide compliance by the public to the measures adopted by Government to contain the spread of the deadly contagion.
When one underscores the unique feature of our grand norm enshrining the duties of individuals towards family, society, the State and other legally recognized communities, and further reflecting on Article 20 of the Constitution, it provides that the rights and freedoms of the individual and groups enshrined in the Constitution shall be respected, upheld and promoted by all organs and agencies of Government and by all persons. It is for this very reason why the role of the lawyer becomes central and pivotal in balancing all interests as highlighted above. This points to a high profile debate whether rendering lawyers as non-essential was carefully scrutinized.
2.0 The doctrine of Essentiality of Legal services during Pandemics:
“At the most pragmatic level, lawyers are society‟s professional problem solvers. Lawyers are called upon to make distinctions, to explain how and why cases or experiences are alike or different. Lawyers are expected to restore the equilibrium, to be balancers. Every discipline, every profession, every job, and every calling has a cutting edge. At that cutting edge, lines are drawn. Lawyers and judges are society‟s ultimate line drawers. On one side of the line, the conduct, action, or inaction is proper; on the other side of the line, it is not”.
(Rennard Strickland & Frank T. Read, the Lawyer‟s Myth
Legal services formed one of the services that were categorized as non-essential during lockdown in the wake of COVID-19 in Uganda(38). The categorization followed the President‟s speech made on the 30th March 2020(39) that also banned movement of all private cars and this rendered it impossible for lawyers as well as Judicial Officers and Staff to access the Court premises. This kept most Court premises closed especially those outside Kampala, the capital city of Uganda. The categorization of lawyers amongst the non-essential services gave rise to a heated debate amongst the legal fraternity but also across professions. Based on this background, it is important to understand the doctrine of essentiality. But before this paper presents the doctrine of essentiality, a discussion of the lawyers and their profession and the role of lawyers in society especially in times of pandemics become imperative.
2.1 Lawyers and their Noble Profession:
It is a settled debate, that the legal profession is one of the three professions, traditionally treated as that of learned professions. All the members associated in this profession are referred to as the learned ones, as they deal with knowledge, ideas, and ethics(40).
Justice Lyre calls the legal profession “the most brilliant and attractive of peaceful professions, with responsibilities both inside and outside it, which no person carrying on any other profession has to shoulder. It is a great controlling and unifying institution which places upon each his duties, gives to each his rights and enforces from each his obligations…”(41)
While addressing the question of practice of legal profession, Justice Lyre further says that “an advocate has to deal with the greatest possible variety of human relations and has his mettle constantly tried from every direction. For the same reason, an advocate earns great social distinction, which ought not to be misused at any cost.” The underlying ethos of the legal profession is the service to society, akin to that of a doctor. The aim is to protect citizens from social diseases. The legal profession, thus, also treated as the noble profession(42) as, it protects and upholds the law. The purpose of law is to preserve the moral sanctity, that binds the society, and lawyers are the social engineers, to bring the social change and development. This term is commonly associated in the field of law for many years, not only lawyers or barristers, but sometimes even judges, also use the term learned friend/brother/sister etc(43). It is clear that even judicial officers are part and parcel of the legal profession, and their role is enjoined(44).
In this case, the role of the judiciary would also be necessarily preserved and protected, as the body charged with reviewing executive and legislative actions for consistency with the constitutional safeguards outlined above. To this end, categorizing, legal services amongst non-essential services, would itself amount to eroding the settled stature, and dogma, the legal profession has justifiably and traditionally enjoyed. The wise words of a Legal realist, Justice Oliver Wendell Holmes, widely regarded as the wisest lawyer in American history become true; “Wanting to become a lawyer is divinely inspired”(45).
2.2 The Role of Lawyers in Pandemics: Justifying a Case of Essentiality under COVID-19:
The role of lawyers defines the necessity and how indispensable they are in any particular circle or defined society, in which they operate. Lawyers can act individually under their law chambers, privately owned law chambers or as employees of private or public institutions‟ law chambers or under an organized association like, the Uganda Law Society (ULS)(46), established under an Act of Parliament: The Uganda Law Society Act, Cap. 276, laws of Uganda.
Section 3 (d), (e) and (i) of the Act of Uganda Law Society enjoins lawyers under their umbrella organization, to perform the following objectives respectively:
a) To protect and assist the public in Uganda in all matters touching, ancillary or incidental to the law;
b) To assist the Government and the courts in all matters affecting legislation and the administration and practice of law in Uganda;
c) To do all such other things as are incidental or conducive to the attainment of the foregoing objects or any of them.
It therefore follows that lawyers in the execution of the aforementioned objectives are individually or collectively charged with the following roles;
3.2.1 Preservation of Justice:
When an advocate/lawyer takes up a case, they are mandated to ensure that technicalities of the law do not result in a miscarriage of justice. An attorney has a duty to use the law in a way that preserves the rule of law and therefore occasioning administration of justice and enforcement of rights. The knowledge and skill of a lawyer should not be held for his or her sole benefit. But should be held in trust for the larger community. In the struggle against COVID-19, the public requires a lot of technical advice in terms of understanding the force of government measures, enclosed under several orders and rules. The lawyer also facilitates the administration of justice in observance of rule of law, wherever there is breach by any citizen. This is done by offering proper representation and the requisite interpretation as officers at the bar and during adjudication as officers at the bench.
“Lawyers have their duties as citizens, but they also have special duties as lawyers. Their obligations go far deeper than earning a living as specialists in corporation or tax law. They have a continuing responsibility to uphold the fundamental principles of justice from which the law cannot depart”. Robert Francis Kennedy (November 20, 1925 – June 6, 1968)(47).
3.2.2 Legislative responsibility:
Lawyers are at the forefront in ensuring the development and maintenance of a responsible legislature that seeks to promote rights and liberties. Responsible legislation entails the development of a legal framework that protects the freedoms and rights of citizens. Additionally, advocates/ lawyers ensure that the laws passed are not oppressive or discriminative against the society. To extend the necessary legal basis to the President‟s Directives, the Minister of Health as mandated under the Public Health Act, Cap. 281 had to enact legal instruments. There is no way the Minister of Health would have succeeded in enacting the said subsidiary legislations without the close involvement of the force of lawyers(48).
“It is the lawyers who run our civilization for us -- our governments, our business, and our private lives. Most legislators are lawyers; they make our laws. Most Presidents, Governors, Commissioners, along with their advisers and brain-trustees are lawyers; they administer our laws. All the judges are lawyers; they interpret and enforce our laws. There is no separation of powers where the lawyers are concerned. There is only a concentration of all government power -- in the lawyers”. (Fred Rodell, Woe Unto You, Lawyers.)
3.2.3 Eradication of Poverty, Inequality, and Ignorance:
Lawyers are expected to play a pivotal role in ensuring that the less fortunate in the community are aided in advancing their livelihood through the law. Some programs could be initiated by lawyers to guarantee equality and societal growth. Also, lawyers are expected to offer free services to the disadvantaged population as a way of promoting human rights. This is exactly, what lawyer and related umbrella organizations should seek to achieve, when the implementators of the law have turned into tormentors(49).
“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress” (Rev. Dr. Martin Luther King Jr.)
3.2.4 Executing the Traditional Role of Advising Clients:
Pandemics form a classic risk scenario. The timing, duration, location, severity and other defining variables are always unknown. As lawyers, during this classic risk scenario, we should advise clients in connection with the evolving risk, whatever the contingencies. In the observance of both the national and international obligations, nation government put in place measures that have to be observed failure of which may lead to prosecution to be brought against the person responsible for the breach; therefore during classic periods of pandemics, lawyers should play their traditional role of advising the public on how to discharge their duties in order to avoid any breach that may result in their prosecution. Many other and complex legal issues arise during pandemics. A point in case, employment issues often arise like it was the case during the 2020 COVID-19 outbreak that led to closure of work places but left a complex issue to do with the obligation of the employers in regards to payment of employees during that period. These among others complex situations demand that lawyers provide sound, subtle and timely legal advice to the respective audiences. This succinctly explains the unquestionable essentiality legal services during a pandemic outbreak.
3.2.5 Crisis Management Advisory:
Lawyers are well-suited to play prominent roles in crisis management situations. Lawyers are able to understand, rapidly developing factual scenarios within the context of both legal obligations and employers‟ disaster recovery and business continuity plans.
3.2.6 Provision of Objective, Rational and Structured Approaches;
Through training and experience, lawyers typically adopt an objective, rational and structured approach to complex problems. COVID-19 pandemic was and continues to be a vast and tangled web of intertwined issues. It requires the acumen of lawyers to disaggregate the issues and to identify approaches and solutions to each. In times of crisis, emotions can undermine analytical approaches to vexing problems. Lawyers are trained to stay „on message‟ in the face of such challenges. Scientists driven by politicians and their supporting technocrats are in the vanguard of protection against COVID-19 pandemic that has already posed an unprecedented challenge. But lawyers have a crucial role, in provision of objective, rational and structured approaches and should be seen to be executing it. This explains why lawyers ought to have been appointed to all World-wide COVID-19 task forces and teams, whatever name may be used.
3.0 The Doctrine of Essentiality of Legal service During Pandemics:
3.1 What are essential services?
At least for the case of epidemic or pandemic outbreaks, Uganda does not have a working definition of essential services. However, Section 2, 33, 36, 43(2) of The Labour Disputes (Arbitration and Settlement) Act, 2006, laws of Uganda tries to define the term essential services, „in the context of labour regime‟. The Act refers to essential services as those specified under schedule 2 of the Act. Schedule 2 of the Act, lists the following services as essential to wit;
water services, electricity services, health services, sanitary services, hospital services, fire services, prison services, air traffic control services, civil, aviation services, telecommunication services, ambulance services, transport services necessary for the operation of any of the services specified in the schedule, central and local government police services.
As already pointed out the definition given under The Labour disputes (Arbitration and Settlement) Act is up close to the labour regime and does not envisage situations involving pandemics. Still, even if it was to be said that government followed the parameters under the Labour Disputes (Arbitration and Settlement) Act, the definition checklist therein leaves out many more services listed as essential services under the several COVID- 19 statutory instruments enacted in the wake of COVID-19. This leaves the schedule non-exhaustive, for all intents and purposes. The Pan American Health Organization also tries to define essential services to refer to those services that are vital to the health and welfare of a population and therefore are essential to maintain even in a disaster(50). This definition lacks the necessary specificity required of a decisive definition. Health and welfare issues are well known broadly under national and international human rights law to encompass rights. This means that lawyers as defenders as well as enforcers of the law must have been part and parcel of the definition for it to be complete.
3.2 The Historical underpinning of the Doctrine of Essentiality:
The doctrine of “essentiality” can be remembered as invented by a seven-judge Bench of the Supreme Court in the „Shirur Mutt‟ case in 1954(51). The court held that the term “religion” will cover all rituals and practices “integral” to a religion. It took upon itself the responsibility of determining the essential and non-essential practices of a religion. The Court went ahead to hold that essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion. The court also enjoined Constitutional Morality doctrine as that which provides a principled understanding for unfolding the work of governance. That the doctrine specifies norms for institutions to survive and an expectation of behavior that will meet not just the text but the soul of the Constitution. It also makes the governing institutions and representatives accountable. Note that constitutional morality doctrine has been exemplified in past cases by the Apex court that decided the case of Shirur Mutt. One of the examples is decriminalizing homosexuality(52).
From the fore, it can be deduced that, for a practice to be essential it must be integral and associated to constitutional morality doctrine that points to amongst, “as one that makes the governing institutions and representatives accountable”. This brings back the role of lawyers in analyzing, scrutinizing, enacting and making the governing institutions accountable for their actions and in effect ensuring rule of law.
However, the doctrine of essentiality has been criticized by several constitutional experts who argue that the doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions. That, the essentiality test impinges on this autonomy. The Apex Court has itself emphasized autonomy and choice in its -Privacy (2017), 377 (2018), and Adultery (2018) judgments. As a result, over the years, Courts have been inconsistent in deciding the question of essentaility:
• In some cases, they have relied on religious texts to determine essentiality,
• In others on the empirical behavior of followers, and
• In yet others, based on whether the practice existed at the time the religion originated.
In 1983, the Committee of Experts of ILO under issue 3 defined essential services as those “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”(53).
The above definition was adopted by the Committee on Freedom of Association shortly afterwards(54). ILO states clearly that, what is meant by essential services in the strict sense of the term “depends on a large extent to the particular circumstances prevailing in a country”; likewise, there can be no doubt that “a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population”(55).
The Committee on Freedom of Association has none the less given its opinion in a general manner on the essential or non-essential nature of a series of specific services. This, in essence left the definition to a particular country to be guided by the prevailing circumstances. However, the committee‟s major ingredient, as to “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”, offers an insight into the definition of what is an essential service and the like.
3.3.0 Comparative Analysis of the Doctrine of Essentiality:
3.3.1 The Case of Rwanda:
Section 1(5) of Law No. 13/2009 of 27 May 2009 regulating labor in Rwanda(56) defines essential services, as indispensable services, which cannot be interrupted regardless of whether it is provided by a public or private entity. Such services should safeguard people‟s basic rights and freedoms such as the rights to life, health, freedom and security, freedom of circulation, and freedom of communication and information. Section 9 of Ministerial Order No. 04 of 13 July 2010, in turn, provides that essential services where strike or lock-out is prohibited shall include services and works aimed at providing security of people and their property, including military services, police and armed security guards, as well as services and works that are involved in guarding prisons and police cells and in guarding one or many people using arms.
The above definition is unsatisfactory, for it is typically a situational definition related to labour matters and it is tailored towards Rwanda as a sovereign Country. The definition, however, brings out vital ingredients of essential services worthy to borrow from such as; indispensable services, which cannot be interrupted regardless of whether it is provided for by a public or private entity.
3.3.2 The Case of South Africa:
South Africa, on its part gazzetted,(57) and declared under item 16; Services related to the essential functioning of courts, Judicial Officers, the Master of the High Court, Sheriffs and Legal Practitioners required for those services as essential services. In this case, South African Legal Practitioners have never received any controversy as legal services in South Africa by the definition under, the Scope of Essential Services: Laws, Regulations and Practices / International Labour Office Geneva: ILO, 2019 are categorized as essential services, which is not for the case of Uganda, as there is no working definition under the same document or similar document. This reminds us that there is an urgent need for a working definition of what amounts to „essential services‟ to be enacted in Uganda to be able to guide in similar situations of pandemic outbreaks in future.
3.3.3 The case of Australia, (South Australia):
Australia, under its Essential Services Act, 198(58), tries to define essential services to mean a service (whether provided by a public or private undertaking) without which the safety, health or welfare of the community or a section of the community would be endangered or seriously prejudiced.
The Australian definition of essential services certainly brings home the notion of human rights in effect that in broad sense encloses safety, health and welfare which are typical aspects that are likely to be threatened if they are not defended. This confirms the essentiality of lawyers justified on the notion of being one of the primary defenders of rule of law and human rights observance.
3.3.4 The Case of Kenya:
In Kenya legal services were first categorized as non-essential under the Public order (State Curfew) order. 2020. This prompted the Kenya Law Society to seek the interpretation of their Court machinery. In the case of the Law Society of Kenya v Hillary Mutyambai, Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 2 others (Interested Parties) [2020] eKLR 92, it was held that: “…as was correctly submitted by the petitioner and the interested parties that in time of crisis the state tends to overreach itself. They have also rightly submitted that the Constitution and the law have not been suspended. I agree that it is only few rights and fundamental freedoms that have been restricted by the operation of the Curfew order. Those rights do not include the non-derogable rights under Article 25 of the Constitution. It is necessary for defenders and upholders of the rule of law to be extra vigilant wherever the state exercises emergency powers”.
It was finally ordered by. Justice W. Korir, Judge of the High Court of Kenya, amongst others to include the members of the Kenya law society, “lawyers” on the list of “services, personnel or workers” exempted from the provisions of the Public Order (State Curfew) order, 2020.
The above case certainly raised tension amongst Ugandan lawyers prompting a move to seek for a similar declaration before the High Court of Uganda. The case of Turyamusiima Vs. Attorney General, Miscellaneous Cause No. 77 of 2020, may have come in late, and offered no basic interpretation to the question; whether legal services are essential, but we still commend M/s Wameli & Co Advocates for taking a resilient step to seek for the so much desired declaration amongst the community of members of law society. The High Court of Uganda is also commended for keeping the faith to pronounce itself on what had become a much debated subject in the public, private and political circles. The High Court affirmed that members of the Uganda Law Society (ULS) are essential service providers.
However, it left the responsibility to the Office of the Attorney General, to provide modalities on how lawyers should represent their clients during the period of the lockdown. This gave back the plight of the lawyers to be subjected to the executive orders thus causing no legal difference in the earlier plan imposed by The Public Health (Control of COVID-19) (Amendment N0.2) Rules, 2020).
The above notwithstanding, the interpretation and reasoning in the case of Kenya Law Society serves perfectly to the question of lawyers‟ essentiality in Uganda, in the same force and spirit. But still, our concern should point to the fact that Kenya, Rwanda, South Africa and Australia registered more cases of COVID-19 than Uganda.
Therefore, when considering the involvement of lawyers most especially as result of the arising human rights violations, more risk to human rights abuses, is high when it comes to bigger numbers.
3.4 Contextualization of the Doctrine of Essentiality of Legal services:
In the foregoing, the doctrine may not have been understood. However, in the perspective of the author for a service to be rendered essential, is itself synonymous with being fundamental, necessary, and/ or indispensable. Therefore, to be categorized as non- essential is referring to legal services as unnecessary and/or dispensable. But is that true? Of course the answer is no.
On the further hand, it is by far, right to say that, in as far as the fight against pandemics like COVID-19, continue to be justified under any law, as it has rightly been done by most Governments worldwide, Uganda not being an exemption, legal services will remain essential, given the pivotal role lawyers play in society. This has already been settled by the earlier discussion.
To offer further justifications, once any just tier of Government decides to enforce, refrain and/or prosecute the violations on any Presidential Directives on COVID-19 as laid under several COVID-19, Public Health Statutory Instruments, it becomes imperative to list the services of lawyers, and primarily the institution of the Judiciary, charged with interpretation of the laws, as essential service providers. All who are prosecuted and/or under any form of detention by Security forces or any related institution are entitled to Constitutional rights that can only be safe guarded by lawyers, the authorized defenders operating hand in hand with the judiciary.
Chapter Four of the 1995 Constitution of the Republic Uganda as amended, and in particular Articles 42, 28 (3) (a), guarantees every citizen of Uganda, a right to be heard in the broad sense, which embodies the presumption of innocence. This cannot be achieved without the involvement of lawyers as defenders and therefore primary stakeholders.
In all folds, legal services justifiably qualify as an essential service on the occasion of legality, functionality and enforceability of orders and rules that a nation may formulate in order to curb or mitigate the spread and effects of a particular pandemic. Locking lawyers out and preventing them from accessing Courts, vital institutions of Government in view of the foregoing would be choosing to give regrettable room for multiple interpretations. This creates a state of double jeopardy, where interpretation of the law remain in the hands and prerogative of the enforcers, like the police, the army and Para-military groups, yet they are already designated with the role of enforcement. Rendering legal services as non-essential poses far reaching implications on the plight of the legal profession in future.
3.5 The doctrines of Interdependence and Convenience of Professions:
Mahatma Gandhi, an Indian lawyer, anti-colonial nationalist and political ethicist, once said: “Interdependence is and ought to be as much the ideal of man as self-sufficiency. Man is a social being. Without interrelation with society, he cannot realize his oneness with the universe or suppress his egotism. His social interdependence enables him to test his faith and to prove himself on the touchstone of reality.” 'Interdependence is and ought to be as much the ideal of man as self-sufficiency.' Man is a social being. Without interrelation with society he cannot realize his oneness with the universe or suppress his egotism. His social interdependence enables him to test his faith and to prove himself on the touchstone of reality.”
Bishop Desmond Tutu, an anti-apartheid and human rights activist also once said: “The fundamental law of human beings is interdependence. A person is a person through other persons”.
It therefore follows that in as much as legal services are essential services as articulated above, in seeking the appropriate visibility, lawyers should never forget the power of the principle of obuntu-humanity and compassion. All professions as well as sectors are fundamentally essential. We should not portray the legal profession as more advantaged than all other professions and sectors that have been equally categorized as non-essential. The difficult times of pandemic outbreaks like COVID-19, demand that we work together. Let us ever think in times of me but think in terms of us. Pandemics do not provide time to seek for convenience for oneself but convenience for everyone. The words of Dr. Martin Luther King Jr. written in one of his letters from Birmingham Jail, April 16, 1963 speaks it all:
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
The words of H.E. Yoweri Kaguta Museveni, the President of the Republic of Uganda in his nation address of 8 April 2020 on COVID-19 sound a lot of wisdom thus: “….the issue is not about education, business or convenience but it is between life and death”. This correlates the doctrine of interdependence and convenience.
In as much as it serves right to fight for space and visibility during the periods of pandemics. It is also important to realize that lawyers or a like are not immune to the virus. It serves a balanced approach to observe the notion of interdependence and not aim at achieving convenience, reminding legal service providers that the first point of concern to remain relevant in any profession, is to try to observe all the health precautions which will helps one to alive and safe. At the same time lawyer are under a professional obligation to use all available opportunities to influence the enactment of proper laws for all times and situations.
3.6 Concluding Thoughts:
When we reflect on the role that law plays in our lives, both private (public) and social, we shall realize that without law, organized society as we understand it would be impossible, and that our health and happiness depends upon the legal system under which we live. To appreciate this, it may be enough to say that from the moment of birth to the moment of death, our lives are regulated by law, between two legal documents, the birth and death certificates, our own well-being and our relationship with others, are governed by law.
A newly born baby is invisibly but effectively protected by law, for it is law which establishes and safeguards the rights of the parent and of those who can take decisions for their education and up bringing later, the child will grow and feel their way into society, for no one can have a full life alone, as a hermit in a desert. They will also marry and raise a family of their own. If their life becomes miserable, they may even seek a divorce. They will work and acquire property. In all these cases, it is the law that will determine their rights and duties.
Then they may never come into contact with, a court of law but will constantly use the services of law just as the healthy individual will have to follow the elementary rules of hygiene, if they are to remain healthy. If they fail in their obligations towards society, it is the law which will protect the members of society from them. If we are to appreciate the full extent of the role of law and lawyers then we will settles our minds with the subject of essentiality of legal services. Law looks after our interests before birth, for example, there is legislation for the protection of the expectant mother.
It is the law that secures the rights of the unborn infant in regard to its personality, rights of property and succession at the end, the law will take into account and regulate our wishes and interests after death, possibly along time thereafter. It is this immense responsibility that befalls a lawyer, who is central at all, levels of the foregoing. Without the lawyer, societal interests are doomed to remain uncertain. This explains how the services of a lawyer are essential even at the difficult time of a pandemic outbreak. Above all, lawyers bear a continuing and automatic noble duty to advise government on an equilibrium point, on how to handle the emerging illegalities of any form of measures formulated in the process in order to deter or mitigate the spread and effects of a pandemic. This sounds loud and clear that categorizing legal services as non-essential is not only a profane but also a misnomer.
REFERENCES:
Laws/ Acts/Instruments:
- The Constitution of the Republic of Uganda, 1995 as amended.
- The Public Health Act, Cap. 281.
- The Public Health (Notification of Covid – 19) Order, 2020, SI No.45 of 2020.
- The Public Health (Prevention of Covid - 19) (Requirements and Conditions of Entry into Uganda) Order, 2020, ST No. 46 of 2020.
- The Public Health (Control of Covid-19) Rules, 2020, ST No.52 of 2020.
- The Public Health (Prohibition of Entry into Uganda) Order, 2020, ST No. 53 of 2020.
- The Public Health (Control of Covid-19) (No.2) (Amendment No.2) Rules, 2020.
Books/Articles/ Reports:
- A.C. Kyeyune, (2020). The lawyers' Creed after COVID-19 Passover (Marianum Press Ltd).
- Ben Kiromba Twinomugisha. (2020). Public Health, Human Rights and the COVID-19 Pandemic in Uganda, available at https://lawafrica.com/wp-content/uploads/2020/04/Public-Health-Human- Rights-and-the-COVID-19-Pandemic-in-Uganda-by-Prof.- Ben-Twinomugisha.pdf.
- Bernard Gernigon, Alberto Odero & Horacio Guido. (1998). ILO principles concerning the Right to strike; International Labour Office Geneva. First published in the International Labour Review, Vol. 137. No. 4, (edition 2000). Copyright © International Labour Organization 1998ISBN 92-2-111627-1.
- Busingye Kabumba. (2020). The 1995 Constitution and Covid-19, available at https://lawafrica.com/wp-content/uploads/2020/04/ The-1995-Constitution-and-Covid-19-by-Dr.-Busingye-Kabumba.pdf.
- Gernigon, B., Odero, A., & Guido, H. (1998). ILO Principles Concerning the right to strike. International labour Office –Geneva, 1st published in the International Labour review Vol. 137. (1998), No. 4, Edn. 2000.
- Human Rights Watch (2020). „Uganda: Respect Rights in COVID-19 Response‟, (April 2, 2020). Retrieved from https://www.hrw. org/news/2020/04/02/uganda-respect-rights-covid-19-response.
- Human Rights Watch, Published on: 19 March 2020,”Human Rights Dimensions of COVID-19 Response, 19 March 2020. Available at; https://www.hhri.org/tag/human-rights/.
- ILO Freedom of association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO Geneva, International Labour Office, 4th (revised) edition, 1996.
- International Covenant on Civil and Political Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49, available at, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
- K.V. Krishnaswamy Lyer. (1945). Professional and Advocacy, 2nd Edn. London: Humphrey Milford University Press.
- Phillip Karugaba. (2020). Uganda: legal Implications of Covid-19. Submitted (28 March 2020); Available at https://ulii.org/blogs/ phillip-karugaba/28-march-2020/uganda-ministry-health-issues-statutory-instruments-combat.
- UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4.
(1) LLM (Master of laws‟ Degree), (MAK), MITPL (Masters in International Trade Policy and Law, (UMU), MPA (Masters in Public Administration), (UMI), LLB (UCU), PGD Cert. in PAM (MAK), PGD cert. in PPM (MAK), PGD cert. in Research & Consultancy Skills (MAK), and a Cert. in Trial Advocacy Africa (JAA) & Justice Advocacy-Uganda (NITA), Commissioner for Oath and Notary Public, Lecturer/Professional advisor, Uganda Christian University and Law Development Centre, in Uganda, Partners Mukiibi & Kyeyune Advocates, author and one of the latest publications is a book entitled: The lawyers‟ Creed after Covid-19 Passover, (2020).
(2) A.C. Kyeyune, The lawyers‟ Creed after COVID-19 Passover (Marianum Press Ltd, 2020), p.36.
(3) Articles 98, 99 and 108 of the 1995 Constitution of the Republic of Uganda as amended.
(4) See Article 98 and 99 of the 1995 Constitution of Uganda, as amended.
(5) Ibid, note 2.
(6) See Articles 98 and 99 of the 1995 Constitution of the Republic of Uganda, as amended.
(7) Walusimbi, D. (2013). Government plans law on presidential decrees. Retrieved from https://www.observer.ug/component/content/article?id=28900:govt-plans-law-on-presidential-decrees.
(8) See, Article 110 (3), of the 1995, Constitution of the Republic of Uganda, as amended.
(9) See, Article 110 (2), of the same Constitution.
(10) (Cap. 297) laws of Uganda.
(11) Kabumba, B. (2020). The 1995 Constitution and Covid-19. Retrieved from https://lawafrica. com/wp-content/uploads/2020/04/The-1995-Constitution-and-Covid-19-by-Dr.-Busingye- Kabumba.pdf,
(12) Twinomugisha, K. B. (2020). Public Health, Human Rights and the COVID-19 Pandemic in Uganda, at page 5. Retrieved from https://lawafrica.com/wp-content/uploads/2020/04/ Public-Health-Human-Rights-and-the-COVID-19-Pandemic-in-Uganda-by-Prof.-Ben- Twinomugisha.pdf.
(13) Twinomugisha, K. B. (2020). Public Health, Human Rights and the COVID-19 Pandemic in Uganda, at page 5. Retrieved from https://lawafrica.com/wp-content/uploads/2020/04/ Public-Health-Human-Rights-and-the-COVID-19-Pandemic-in-Uganda-by-Prof.-Ben- Twinomugisha.pdf.
(14) The Public Health Act offers an old but fairly robust legal framework for government to justify and regulate the implementation of measures designed to secure public safety during pandemic outbreaks a point in case is the outbreak of Covid-19. Local government authorities are also empowered under the local Government Act, 1997 (Cap. 243), to enforce such regulations and may make their own.
(15) Karugaba, P. (2020). Uganda: legal Implications of Covid-19 Retrieved from https://ulii. org/blogs/phillip-karugaba/28-march-2020/uganda-ministry-health-issues-statutory-instruments-combat.
(16) Ibid.
(17) Ibid.
(18) Ibid.
(19) Ibid.
(20) Twinomugisha, K. B. (2020). Public Health, Human Rights and the COVID-19 Pandemic in Uganda, at page 5. Retrieved from https://lawafrica.com/wp-content/uploads/2020/04/ Public-Health-Human-Rights-and-the-COVID-19-Pandemic-in-Uganda-by-Prof.-Ben- Twinomugisha.pdf.
(21) Article 43(1) of the 1995 Constitution of the Republic of Uganda as amended.
(22) Article 23(d) of the 1995 Constitution of the Republic of Uganda as amended.
(23) Article 43(2) (c) of the 1995 Constitution of the Republic of Uganda as amended.
(24) See, Monitor Reporter, ‟Coronavirus curfew: Police officer detained for torturing woman‟, Saturday Monitor, 4 April 2020, p. 1. See also, Human Rights Watch, „Uganda: Respect Rights in COVID-19 Response‟. Retrieved from https://www.org/news/2020/04/02/ Uganda. respect-rights-covid- (Accessed 8 April 2020); Human Rights Watch, „Uganda LGBT Shelter Residents Arrested on COVID-19 Pretext‟ https://www.hrw. org/news/2020/04/03/Uganda-lgbt-shelter-resident. All quoted in Kyeyune. A.C. (2020). Lawyers‟ Creed after Covid-19, (Marianum Press Ltd, 2020), p.19.
(25) „Zaake admitted after torture, (2020). Retrieved from https://edge. ug/2020/04/24/zaake-admitted-after-torture.
(26) See, https://news.areageany.com/makerere-law-graduate-gets-night-in-jail-forcamping-at-state-house-to-beg-museveni-for-food. See also Kyeyune, lawyers‟ Creed after Covid-19, op. cit.
(27) Ssebwami, J. (2020). „Stop beating people Museveni, Warns LDU‟s, security personnel they will face it rough for manhandling citizens‟. Retrieved from https://www.pmldaily.com/news/2020/04/stop-beating-people-museveni-warnsldus-security-personnel-they-will-face-it-rough-for-manhandling-citizens.html.
(28) Ibid.
(29) Museveni pardons 833 prisoners countrywide, (Tuesday April 28, 2020).Retrieved from https://www.monitor.co.ug/News/National/Museveni-pardons-833-prisonersAttorney-General-Cocid19/688334-5536982-ed9kg9/index.html, see also, COVID-19: Museveni pardons 833 prisoners, (April 28, 2020), available at https://observer.ug/ news/headlines/64506-covid-19-museveni-pardons-833-prisoners.
(30) Rolling Updates on Coronavirus disease (COVID-19) updated 18 April 2020, available at
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen, and https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid- 19-is-now-officially-a-pandemic-who-says, both accessed 10 April 2020 at 8:53 AM, Ugandan Time.
(31) Many of these and other important characteristics of the right to health are clarified in general comment No. 14 (2000) on the right to health, adopted by the Committee on Economic, Social and Cultural Rights.
(32) UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Cil and Political Rights, 28 September 1984, E/CN.4/1985/4, available at: https://www.refword.org/doci/4672122.html.
(33) Human Rights Watch, Published on: 19 March 2020,”Human Rights Dimensions of COVID-19 Response”, 19 March 2020. Available at; https://www.hhri.org/tag/human-rights/.
(34) Article 16 of the African Charter on Human and Peoples‟ Rights.
(35) See Article 12 (2) of the Universal Declaration of Human Rights, (UDHR).
(36) https://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx, and https://www.who.int/ health systems/topics/health-law/chapter1.pdf.
(37) https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf .
(38) It is not clear why lawyers in the first place were categorized as non-essential. The reasons given by the President are not satisfactory also. He only generally said that security and medical personnel and others categorized as essential, come first without justifying why legal services were not categorized as essential. What cannot be denied is that the period poses human rights violations that require lawyers as defenders to represent those whose rights are violated or those found at the wrong side of the law.
(39) Sebwami, J. (2020). Museveni announces 14-day shutdown in Uganda as government enforces discipline to stem Coronavirus spread. PML Daily News. Retrieved from https:// www.pmldaily.com/news/2020/03/full-speech-museveni-announces-strict-measures.html.
(40) Why Lawyers Are Called Learned Friends? Law Corner, Twitter (February 27 2019) https:// lawcorner.in/why-lawyers-are-called-learned-friends/.
(41) K.V. Krishnaswamy Lyre, Professional and Advocacy, 2nd Edn. London: Humphrey Milford University Press, 1945, P.1.
(42) The legal profession has always been considered a noble profession. This was recognized in numerous Supreme Court judgments such as Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732] where the Apex Court enunciated that the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behooving the noble profession. The legal profession is nothing without its ideals and ethics. The client-attorney relationship is fiduciary in nature, and hence the lawyers have the duty of care.
(43) Ibid at https://lawcorner.in/why-lawyers-are-called-learned-friends/.
(44) Thus the legal profession historically, is one of the most respectful and honorable profession, that is why all the members associated with this noble learned profession are called as learned. Beside of this, referring a lawyer/barrister as the learned friend by another lawyer/ barrister is a British tradition which is followed in most of the countries.
(45) The Jurisprudence of Constitution Interpretation; https://www.scribd.com/document/65083733/The-Jurisprudence-of Constitutional Interpretation.
(46) This may include any bar association as by any name called across the corners of the world.
(47) An American politician and lawyer who served as the 64th United States Attorney General from January 1961 to September 1964, and as a U.S. Senator from New York from January 1965 until his assassination in June 1968.
(48) Uganda: legal Implications of Covid-19; submitted by Phillip Karugaba, Phillip Karugaba‟s blog (28 March 2020; available at https://ulii.org/blogs/phillip-karugaba/28-march-2020/ uganda-ministry-health-issues-statutory-instruments-combat.
(49) Uganda: Respect Rights in COVID-19 Response, Human Rights Watch (April 2, 2020), available at https://www.hrw.org/news/2020/04/02/uganda-respect-rights-covid-19-response.
(50) Pan American Health Organization, (2020). Disaster Management: Maintenance of Essential Services. Retrieved from file:///C:/Users/Colline/AppData/Local/Packages/Microsoft. MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/RespToolKit_24_Tool%2016_MaintenanceofEssentialServices%20(2).pdf.
(51) Doctrine of Essentiality, accessed from; https://lucidpedia.com/doctrine-of-essentiality/.
(52) Supreme Court on Religious Practices, 16th Nov 2019, available at; https://www.drishtiias. com/daily-updates/daily-news-editorials/supreme-court-on-religious-practices,
(53) Gernigon, B., Odero, A., & Guido, H. (1998). ILO Principles Concerning the right to strike. International labour Office –Geneva, 1st published in the International Labour review Vol. 137. (1998), No. 4, Edn. 2000.
(54) ILO Freedom of association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO Geneva, International Labour Office, 4th (revised) edition, 1996 /Summary/, /Freedom of association/, /Committee/, /ILO Governing Body/. 04.02.2 ISBN 92-2-109456-1. Retrieved from file:///C:/Users/Colline/Ap-pData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/ Digest%20Fourth_ENG.pdffile:///C:/Users/Colline/AppData/Local/Packages/Microsoft. MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/Digest%20Fourth_ENG.pdf.
(55) Ibid, ILO, 1996d, Para. 541.
(56) The Scope of Essential Services: Laws, Regulations and Practices / International Labour Office, Sectoral Policies Department. - Geneva: ILO, 2019. (Working paper: WP 334) ISBN: 978-92-2-031596-5 (web pdf); ILO Cataloguing in Publication Data. Available; https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/publication/wcms_737647.pdf.
(57) See the Gazette 43168 of 26 March 2020 and Gazette 43199 of 2 April 2020 and Gazette 43232 of 16 April 2020) South African Government. Retrieved from https://www.gov.za/ Coronavirus/essential-services.
(58) See, https://www.ilo.org/legacy/english/dialogue/ifpdial/iig/chs/ex4.htm .