7.1. Constitutional, Legislative and Policy Framework

Several general factors have complicated the combat against COVID-19 in Africa. The first is national health infrastructures, which are fragile owing to limited funding and resources. The second is limited access to water.4 A little under half of the African countries have only one hospital bed per 1,000 people.5 Seven countries have over two beds per 1,000 people (Cabo Verde, Comoros, Equatorial Guinea, Mauritius, Namibia, South Africa and Zambia), while only Mauritius’ hospital bed numbers are comparable with those of Italy (3.4 per 1,000 people).6 Mozambique, for instance, is a country with 28 million inhabitants but fewer than one health unit per 10,000 inhabitants (1,643 in total), of which 12% do not have running water, and only 473 doctors, most of whom are foreigners (over 400).7 Moreover, out-of-pocket expenses remain high across countries, as financing for the health sector is fairly low.8 Access to water is not guaranteed in all African countries, which makes following the hand-washing guidelines more challenging. As many households do not have sanitation services, such as toilet facilities in the house, members have to leave home on a daily basis.9

Around 45 of the AU Member States’ constitutions contain the right to health or the right to equal access to health care,10 and more allow the adoption of measures to protect public health.11 According to one international observer, overall, five countries adopted laws related to COVID-19, three of which dealt with the expansion of powers of the head of government (Egypt, Ghana and Tunisia) and one declared a state of emergency (Gabon); Algeria’s Law No. 20-06 amended the Criminal Code to include the dissemination of disinformation as a punishable offence (Article 196).12 Other countries adopted regulations on COVID-19 or related topics such as the spread of disinformation. Ethiopia’s Regulation No. 466/2020 prohibits COVID-related information that “would cause terror and undue distress among the public.” Section 30(3) of Botswana’s Emergency Powers (Covid-19) Regulations 2020 penalises the spread of information “from a source other than the Director of Health Services, and the WHO [World Health Organization]” and South Africa’s Electronic Communications, Postal and Broadcasting Directions obliges radio providers to make COVID-19 news available for streaming and for private internet providers to remove “fake news related to COVID-19” from their websites.13 Egypt’s main media regulator, the Supreme Council for Media Regulation, has started blocking websites that it alleges spread “false information” but has not been transparent about the content or the sites that are blocked.14

Many regulations are related to declarations of emergency, impositions of lockdowns or prohibitions of public gatherings.15 In fact, at least 20 countries have pronounced declarations of emergency, at least five have issued declarations of a national state of disaster or calamity and 11 declarations of (public) health emergency; Sierra Leone imposed a state of emergency before its first COVID-19 case was recorded.16 At least 39 out of 55 Member States of the AU have installed full or partial lockdowns of various lengths.17 Benin has not adopted lockdown measures but has put in place sanitary cordons.18 While President Mutharika in Malawi ordered a lockdown, the country’s High Court subsequently blocked this.19

Lockdowns and curfews have often been enforced radically by police forces, leading to multiple casualties.20 According to Zambia’s national police spokesperson, police began implementing a strategy to “hit” and “detain” anyone in public.21 In Kenya, police claiming to enforce the curfew killed 15 people in the first nine weeks alone, and at least 10 people were killed as a consequence of lockdown enforcements in South Africa. In Uganda,12 people died before the first COVID-19 death was recorded. In Nigeria, 18 had been killed at the hand of law enforcement officers by mid-April, outweighing the numbers of death by COVID-19.22 In the same country, there were reports of the police assaulting women.23 In poorer countries, where many people do not have a disposable income, they have to choose between hunger and subjecting themselves to violence by law enforcement.24 Escalations in police violence led the Angolan spokesperson of the Home Affairs Ministry to issue an apology for police-perpetuated violence during the lockdown.25

Even more states have prohibited large public gatherings.26 As a consequence, fundamental freedoms such the right to protest and freedom of speech and the press have been diminished. Arrests of journalists, activists and protestors have been reported in the North African countries of Algeria, Egypt and Tunisia, as well as in Kenya and Nigeria.27 Moreover,