Since the official announcement of COVID-19 by the Minister of Health on March 13th 2020, there were a number of measures taken as a means to prevent the spread of the Pandemic. As required by the law (section 10 of the Public Health Act) that the Minister by way of order has to announce an epidemic, the Minister indeed by the way of order, Public The Public Health (Notification of COVID – 19) Order, 2020 declared COVD-19 as a notifiable disease for the purpose of the Public Health Act.
Further, the Order brought into application the Public Health Act to wit-Section 11 (Power to make Rules), Part IV (Prevention and Suppression of Infectious Diseases) and section 36 (Power to Enforce Precautions at Boarders) of the Public Health Act and are now applicable to to COVID – 19. This therefore means that the management of COVID-19 is now by way of law(s) exercised by the Minister of Health.
The right to free movement, leave and return to ones’ country
The right to free movement emanates from the Universal Declaration of Human Rights where Article 13 states that “(1) Everyone has the right to freedom of movement and residence within the borders of each state and (2) Everyone has the right to leave any country, including his own, and to return to his country.”
Further, the International Covenant on Civil and Political Rights (ICCPR) under Article 12 states that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence; Everyone shall be free to leave any country, including his own; and no one shall be arbitrarily deprived of the right to enter his own country.”
The Constitution of Uganda under Article 29 (2) provides for free movement of persons and the right to reside and settle in any part of Uganda; (b) to enter, leave and return to, Uganda; and (c) to own a passport or other travel document. In light of the above legal provisions, it is evident that a person has a right to move from place to another, reside in any part of Uganda and also leave and return to Uganda at will. One cannot arbitrarily be denied movement throughout Uganda or outside or even return unless there are justifiable reasons which must be legal.
Restriction to movement in and out of Uganda during COVID-19
Having noted that it is a fundamental right for one to freely move to any part of Uganda or outside its territory, this right is not absolute as it is limited in certain circumstances. Under Article 43, a right can be limited due to public interest. Health is one example of public interest which means that a government is ultimately responsible for the careful management of their citizens’ wellbeing. The health of the people must always be a national priority. The Ministry of health notified the Country of COVID-19 on March 13th 2020 and further, there was a restriction to movement; Statutory Instrument No.55 which imposed a curfew and restricted any movement of persons except those who offer essential services such as the health workers, security agencies, bankers, lawyers, media among others. It is therefore important to note that the restriction to movement has been made legally by way of Ministerial orders and as such, there is no infringement of the right to freedom of movement as it has been curtailed legally and in public interest as enjoined by the Constitutional and the international instruments above.
The right to return to Uganda
Several Ugandans have been stranded abroad in various parts of the world since the shut down of the ports of entry to Uganda on March 21st 2020. The shutting down of the ports of entry was done again in the name of public interest-to prevent the spread of COVID-19 and specific guidelines such as mandatory testing, isolating and quarantining were provided for under the Statutory Instruments No.53 (Prohibition of entry) and No. 46 (requirements and conditions of entry).
Under Article 12 (3) of the ICCPRs, exceptions as to right of return to one’s country of origin are that they should be those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. This therefore means that if the restriction to the right of return has been made by law or necessitated by public health, the right to return to Uganda can be suspended.
However, the Uganda Media Centre produced a list of some Ugandans who have been permitted to return home. The bigger question is, under what legal framework is this being done? Has the Minister amended her orders which earlier only permitted entry to Cargo, truck drivers, pilots, UN and humanitarian relief to also allow all Ugandans stranded abroad to return home? In the absence of the clear law and a transparent procedure to allow right of return, the Foreign Affairs Ministry may be taking the law in its hands to allow certain number/category of Ugandans entry into Uganda. If we must allow Ugandans entry, let the procedure and announcement be made public to the benefit of every Ugandan stranded abroad.
Michael Aboneka is a Partner:Thomas & Michael Advocates and Director: Envirogreen Trust Ltd
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