October 01, 2020
By Alexis Thiry, Originally published on Just Security on October 1, 2020.
Early in the COVID-19 pandemic, governments across the Middle East and North Africa (MENA) were generally praised by the international community for their initial response. The health crisis prompted States of the region to take exceptional measures, such as the closing of borders, curfews and home confinement, and these drastic steps have yielded some success in the fight against the virus. Case counts remained relatively low in many countries in the region, when the health systems in the global North were struggling to cope with the rising numbers of infections.
However, these exceptional measures often failed to account for human rights impacts of the restrictions, or used the pandemic response as an excuse to impose excessive restrictions. Invoking the protection of public health, governments have derogated from or suspended a number of civil and political rights, and in some instances, declared states of emergency that reached beyond the dictates of pandemic prevention. This pandemic has also provided an opportunity for policy-makers to enforce repressive laws and introduce new, restrictive legislation under the guise of addressing the health situation.
Under Article 4 of the International Covenant on Civil and Political Rights (ICCPR), ratified by most Arab States, governments may derogate from some of their treaty obligations in the event of a “public emergency which threatens the life of the nation.” Although it is debatable whether the spread of COVID-19 amounts to such a threat ̶ the U.N. Human Rights Committee’s General Comment No. 29 does not mention a pandemic as a situation that may threaten the life of a nation ̶ the Siracusa Principles on the limitation and derogation provisions in the ICCPR recognizes that “public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population.”
On April 27, 2020, the Office of the United Nations High Commissioner for Human Rights (OHCHR) published policy guidance explaining that “some rights, such as freedom of movement, freedom of expression or freedom of peaceful assembly may be subject to restrictions for public health reasons, even in the absence of a state of emergency,” provided that they meet the requirements of “legality, necessity and proportionality, and be non-discriminatory.” The guidance further specified that any additional powers granted to the authorities to respond to a public health exigency must be time-bound and only exercised on a temporary basis with the aim to restore a state of normalcy as soon as possible.
Out of the 22 members of the Arab League, at least six have declared states of emergencies in the context of the pandemic, sometimes known as a “state of health emergency” in Morocco or a “state of general mobilization” in Lebanon, where the authorities then imposed an additional two-week state of emergency in the capital following the devastating Beirut explosion of August 4. However, these declarations deviated from the international standards governing state of emergencies.
Except for Palestine, none of these countries informed the United Nations Secretary-General of the provisions of the ICCPR that they intended to derogate from, as obliged under Article 4 (3) of the ICCPR.
The Palestinian Authority was the first administration to declare a 30-day state of emergency after coronavirus cases were reported in Bethlehem on March 5, 2020, followed by Sudan on March 16. The next day, Jordanian King Abdullah II issued a royal decree activating Defense Law No. 13 of 1992 granting the Prime Minister extensive powers to suspend certain individual rights, including freedoms of movement and expression. Most notably, the law allows the government to “monitor messages, newspapers, publications, pamphlets, drawings, and all means of expression, publicity and advertisement before publishing, seizing, confiscating, disrupting them, and closing their numbers.”
Other countries like Tunisia and Egypt were already living under a continuous state of emergency when the virus erupted. Egyptian president Abdel Fattah Al Sisi invoked the “critical security and health situation” to further extend the state of emergency, in place since 2017. In May, Emergency Law No. 162/1958 was amended, increasing presidential powers and broadening the jurisdiction of military courts to prosecute civilians. The authorities claimed that the pandemic revealed a “vacuum” in the legislation that needed to be addressed. Yet, out of the 18 proposed amendments, only five were clearly tied to public health.
Under the modified emergency law, the head of state is authorized to close schools, universities, courts, government facilities, public and private businesses and restrict “public gatherings, protests, rallies, festivities, and any other form of gathering, including private gatherings” even in the absence of any public health purpose.
Free Speech versus “Fake News”: A False Dichotomy
Even in normal times, Article 19 of the ICCPR on the right to freedom of expression provides sufficient grounds for necessary and proportionate restrictions to protect public health, among other things. Yet, States in the region have imposed nominally COVID-related restrictions that are not strictly motivated by legitimate public health goals and fall short of the principles of necessity and proportionality. Among these is the criminalization of the distribution of “fake news,” “false information,” or reports on the pandemic that are unsanctioned by authorities.
Several international and regional mandate holders on the right to freedom of opinion and expression clearly stated in a Joint Declaration on “False News, Propaganda and Disinformation” that prohibiting the dissemination of information based on vague concepts such as “false information” was incompatible with international standards for the protection of freedom of expression.
There are less restrictive and more effective measures to combat “false news” such as the promotion of independent fact-finding mechanisms, state support for independent, diverse, and adequate public service media, and public and media education, which have been recognized as less intrusive means to combat misinformation. Despite the existence of these alternative, governments across the region have adopted sweeping restrictions on speech in the name of combatting “false information.”
In Algeria, the government swiftly passed a law amending the Penal Code after a “restricted” parliamentary debate. Entered into force on April 29, 2020, the new provisions severely restrict civil society organizations’ ability to obtain foreign funding, increase prison sentences for defamation, and introduce new penalties, including imprisonment, for the dissemination of false information deemed harmful to “public order and state security.”
The text does not specify what constitutes false news, thereby providing the authorities with disproportionate and discretionary power allowing them to suppress critical content and controversial information. In March, President Abdelmadjid Tebboune had already set the tone, declaring that the fight against the new coronavirus entailed the “search for and identification of defeatists who attempt to circulate fake news to sow anarchy and keep the citizen in a state of panic.”
With less success, the Moroccan Minister of Justice attempted to introduce a draft law on social media granting broad censorship powers to both network providers and the administration while criminalizing calls for boycotts and the dissemination of “false information.” When the text was leaked, human rights NGOs protested that the draft bill was not in line with international standards on freedom of expression online and called for the respect of the right of access to information, particularly in times of pandemic crisis. The bill was temporarily suspended on May 4, 2020, under pressure from public opinion.
In the same vein, the United Arab Emirates’ (UAE) Attorney General announced on March 16, 2020, that security authorities would impose, based on the Penal Code and the controversial Cybercrime Law, harsh penalties ranging from one to several years in prison for spreading “false information” about the coronavirus through social media. The Council of Ministers later issued an Order prohibiting any person from publishing or circulating false or misleading health information that is not officially announced or approved by the Ministry of Health.
At the same time, the UAE’s National Media Council stopped the distribution of all print newspapers and magazines on March 24, 2020 as a measure to prevent the spread of the novel coronavirus. Other countries such as Yemen, Jordan, Algeria, Oman, Morocco, and Saudi Arabia, have taken similar decisions despite the absence of a proven direct correlation between the distribution of newspapers and the spread of COVID-19. Although governments have encouraged the press to go online, such measure negatively impacted the readers’ right to information, in particular in areas with low Internet penetration rates.
While it is crucial for the public to have access to reliable information in the current context, laws criminalizing the dissemination of false information can be – and often are – misused by the authorities to muzzle journalists, political opponents, human rights defenders and even health workers who might be critical of their government’s management of the crisis.
Egyptian authorities went as far as to instruct medical personnel not to discuss the health crisis with the press, while the Supreme Council for Media Regulation issued a series of announcements between March and June 2020, each of which threatens legal action against journalists or media outlets who might depict negative aspects of the government’s response to the COVID-19 crisis. Amnesty International has documented the cases of eight health workers, who were arbitrarily detained between March and June by the Egyptian National Security Agency (NSA) for online and social media posts expressing their health-related concerns.
Towards Never-Ending Emergency Powers?
The MENA region has experienced long periods during which states of emergency have been in place. When the Ba’ath party took power in Syria after the 1963 coup d’état, a state of emergency was declared, granting security services sweeping powers of arrest and detention without trial or access to a lawyer. This legal regime lasted until 2011, when Bashar Al Assad lifted it in a failed attempt to defuse mass protests. That same year, former Algerian president Abdelaziz Bouteflika made a similar move, ending a 19-year-long state of emergency in the context of the Arab Spring.
In Egypt, a continuous state of emergency has been in place between 1967 and 2012, save for an 18-month period in the 1980s. The aforementioned Emergency Law No. 162/1958, which is still in force, allowed the authorities to ban protests and monitor personal communication. More recently, Tunisia has continuously imposed a state of emergency since it was initially proclaimed in November 2015 after a suicide bombing in Tunis.
Following a country visit to Tunisia, in 2017, the former Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism declared that “the routine extension of the state of emergency with overreaching executive and law enforcement powers […] is prohibited under international law.”
State practice tends to suggest that “the longer the emergency regime lasts, the further the state is likely to move away from the objective criteria that may have validated the use of emergency powers in the first place”, according to the European Commission for Democracy.
Reasons might be country-specific, but the fight against terrorism and threats on national security have emerged regionally and globally as recurring justifications for the declaration and prolongation of emergency measures, giving rise to an enduring system of governing characterized by arbitrariness and the erosion of the rule of law.
As the virus continues to spread with no end in sight, there is a well-founded concern that the exceptional measures adopted by MENA governments during the COVID-19 crisis will have long lasting implications on the enjoyment of human rights in the region. The precedent set by the fight against terrorism reveals that the reinstatement of rights that have been suspended or derogated from since March 2020 is not guaranteed.