The state of emergency in Sao Tome and Principe begun at 0.00am on 17 March 2020, pursuant to Presidential Decree 3/20, of 17 March 2020. Extended five times – the first under Presidential Decree 4/20, of 2 April 2020, the second under Presidential Decree 06/20, of 20 April 2020, the third under Presidential Decree 8/20, of 4 May 2020, the fourth under Presidential decree 9/20, of 18 May 2020, and the fifth under Presidential Decree 11/20, of 1 June 2020.

The Government declared the state of public disaster on the heels of the state of emergency, under Council of Ministers Resolution 23/20, of 15 June 2020.

Below is an overview of the legal framework of the both the state of disaster.

 

State of Public Disaster

 

What is a State of Public Disaster and when can it be declared?

The situation of public disaster is foreseen in the Civil Defense and Firefighting Act, enacted by Law 4/16, of 23 June 2016.

The state of public disaster can only be declared if a serious accident, act of God or public disaster occurs or is threatened that requires taking measures to prevent such occurrence or to resume normal living conditions in the affected areas.

The Council of Ministers resolution declaring the situation of public disaster must expressly set out (i) the nature of the event underlying the situation declared, (ii) the temporal and territorial scope, (iii) the structure to coordinate and control the means and resources to be made available, and (iv) the procedures to take stock of the damages and losses caused (Article 23 of the Civil Defense and Firefighting Act).

 

What impacts can the State of Public Disaster have?

The declaration of a public disaster may entail (i) mobilizing civilians for specific periods of time, (ii) limiting or conditioning the movement or stay of persons or vehicles for their own safety or the safety of operations, (iii) establishing cordons sanitaires, (iv) rationalizing the use of public transport, communications, water and energy services and the consumption of basic necessities.

Among other effects or consequences, the declaration of a public disaster situation:

 (i) is enough to justify civil defense agents having free access to private property in the affected area and the use of private natural or energy resources, strictly as required to perform any acts aimed at resuming normal living conditions;.

 (ii) allows to authorize the release of any officials, agents and other Public Administration employees who are also civil defense and rescue agents, when called upon in connection with any event covered by the declaration of a state of disaster;

 (iii) allows temporarily to requisition any real or personal property and services.

 

What were the specific measures taken in connection with the declaration of a State of Public Disaster?

The Government decreed a situation of disaster across the national territory until 31 July 2020 under Council of Ministers Resolution 23/20, of 15 June 2020, subject to any extensions or amendments as warranted by the evolution of the epidemiological situation.

Our observations regarding each particular aspect of the declaration notwithstanding, the framework attached to the above Resolution establishes, among other things, an obligation of COVID-19 patients to remain in isolation at home and under active surveillance.

There is also a civic duty to stay at home, all citizens being advised to stay in their homes and refrain from moving in public areas and roads and similar, except to work or to attend to any urgent and pressing situations.

Maritime passenger transport has been authorized since 16 June as have special flights between the islands of Sao Tome and of Principe, subject to the prior testing of passengers for COVID-19 no more than 24 hours prior to travel, for the Sao Tome – Principe route.  Regular commercial flights between the islands of Sao Tome and of Principe will be authorized from 16 July, as will the transport of passengers by vessel.

The air space will reopen on 1 July for commercial flights from CPLP countries and on 16 July for commercial and charter flights from all countries.

Certain establishments, hotels included, are foreseen to reopen. The act also establishes the reopening dates for: (i) restaurants and similar establishments; (ii) schools; and (iii) cultural establishments; (Articles 8, 12 and 16). 

Goods and services businesses’ will be open from 7.30am to 3.00pm between 16 and 30 June, except for bakeries, gas stations and pharmacies, which will be open from 06.00am to 6.00pm, and companies working in shifts.

Commercial establishments and general services will resume their regular opening hours from 1 July.

The civil service will operate on a single schedule, from 7:30am to 1:00pm, between 16 and 30 June, with their staff on rotation. From 1 July, the civil service will operate during regular opening hours, with all staff present.

From 1 July, meetings and lectures are allowed, with up to 50 people and a restriction of 50% of the capacity, when held indoors, the use of face mask and the observance of the rules of social distancing being mandatory.

 

OIL & GAS Contracts:

The Council of Ministers enacted a Derogation Flexibilization Regime (Portuguese acronym “REF”) on 17 June 2020 regarding the terms of the Production Sharing Contracts (“PSC”).

Under the REF, the Executive Director of the Agência Nacional do Petróleo de São Tomé e Príncipe (“ANP-STP”) (the San Tomean Petroleum Agency) is vested with full powers to sign addenda to the PSCs and extend the Exploration Periods (“EP”), provided that:

  • The extension does not exceed 12 months; and
  • The Contractor notifies the ANP-STP of their intention to extend the EP and to perform/resume the performance of the PSC; and
  • The performance of any obligations arising from the PSC is not delayed, suspended or prevented for reasons of Force Majeure; and
  • The Contractor is not in default under the PSC.

The extension only affects the schedule of the EP. Any other terms and conditions agreed in the PSC remain unchanged during the extension period, save in the event of any changes to Minimum Work Program (“MWP”) or to the Minimum Financial Commitment (“MFC”) of the PSC. The Executive Director of the ANP-STP is further vested with full powers to sign any addenda amending the MWP or the MFC under the PSC.

The REF was approved as a measure to address the impacts caused by the COVID-19 Pandemic on the oil & gas industry and applies to PSCs executed for blocks in the Exclusive Economic Area.

The REF was enacted by Council of Ministers Resolution 25/2020, published in the Official Gazette on 23 June 2020. The Resolution took effect on the day it was enacted and remains in force until 30 September 2020.

 

State of Emergency

 

Considering the public health emergency caused by COVID-19 and the need to take the necessary action towards the prevention and fight against the spread of this pandemic, the Government of Sao Tome and Principe has enacted a set of measures aimed at the implementation of the recommendations issued by the World Health Organization (“WHO”). Therefore, in order to protect the community, the State of Public Health Emergency was enacted, having been approved measures by the Government to contain the spread of the disease.

Since some of these measures entail the suspension of rights, freedoms and guarantees protected by the Constitution of the Democratic Republic of Sao Tome and Principe, notably the freedom of movement, right to work, employees’ rights, private property and initiative, the President of the Republic of Sao Tome and Principe, after consulting the Government, followed by the authorization of the National Assembly, has extended the state of public health emergency in all national territory, for the fourth time through Presidential Decree no. 9/2020, of 18 May (“PD 9/20”).

The state of emergency was regulated by the Government, through Decree-Law no. 6/2020, of 6 May (“Decree-Law no. 6/20”) amended by Decree-Law no. 10/2020, of 16 May, and Decree-Law no. 7/2020, of 7 May (“Decree-Law no. 7/20”). Below you will find an overview of the essential issues that arise from this regime as well as an explanation on how they have been implemented in the declaration.

 

What is a state of emergency?

After hearing the Government and obtaining the National Assembly's authorization, the President of the Republic is entitled to declare a state of emergency, which determines or allows for the determination of partial suspension of citizens’ rights, freedoms and guarantees based on the occurrence (or threat) of a public disaster.

The state of emergency legal framework is laid down in Articles 19, 80, 97, 155 of the Constitution of the Democratic Republic of Sao Tome and Principe, and in articles 176 to 179 of the Rules of Procedure of the National Assembly.

 

What are the potential impacts?

In practical terms, the declaration of a state of emergency may involve the partial suspension of certain rights, freedoms and guarantees, as ordered: e.g. a ban on travel or on the performance of certain personal or business activities.

If necessary, civil administrative authorities can have their powers reinforced and be supported by the Armed Forces.

The declaration of a state of emergency grants public authorities powers to adopt the necessary and adequate measures, exempting them from complying with certain formalities in doing so (e.g., the Ministry of Health’s power to requisite human or material resources from private-law businesses).

As a rule, the declaration of a state of emergency must abide by the principle of proportionality and be limited, in particular regarding its scope, duration and the resources used, to what is strictly necessary in view of the rights to be protected and the prompt return to normality.

 

Can the State adopt just any measure?

The state of emergency cannot affect rights of superior constitutional dignity identified in the law and in the Constitution. In particular, the declaration must abide by the principle of equality and non-discrimination as well as some elementary guarantees linked with the criminal procedural (e.g., against illegal arrests and detention) and access to courts. Moreover, it may not impose prior censorship of the media or prevent meetings of the statutory bodies of political parties, trade unions and professional associations.

The declaration of a state of emergency may not, under any circumstance, affect the rights to life, personal integrity and dignity, personal identity, civil capacity and citizenship, the non-retroactivity of criminal law, the defendants' right of defence and the liberty of conscience and religion.

As for its content, the declaration must specify which rights, freedoms and guarantees are suspended or undermined.

In the present case, with the enactment of the state of emergency the following rights are suspended in full or in part:

a)       International Travel (sanitary controls can be established, through the imposition of mandatory confinement);

b)      Right to of circulation and emigration (restrictions such as mandatory confinement at home or at healthcare facility, and sanitary fences may be imposed);

c)       Right to assembly of cultural, recreational, religious, sport or leisure natures;

d)      The right to property and private economic initiative (which may require the provision of services and the use of movable or immovable property, health care units, commercial establishments, as well as the obligation of opening, operation and functioning of companies, establishments or their closure and other limitations or modifications to their activity, including changes to the amount, nature or price of the produced and marketed goods);

e)      The right to strike and general employees' rights (it may be determined that any employees of public or private entities, regardless of their employment relationship, may report to service and, if necessary, start working in a different place, in a different entity and under different working conditions and schedules from those corresponding to the existing employment relationship - namely in the case of workers in the health, civil protection, security and defence sectors, among others essential to the functioning of the economy, the maintenance of public order and the democratic Rule of Law).

 

Can measures be imposed to just some parts of the territory?

A state of emergency may be declared with regard to the entire or to part of the national territory.  Measures can, however, be adopted to restrict circulation or impose forced quarantine in certain areas.

In the present case, the declaration of the state of emergency applies to the entire national territory, being applicable in Sao Tome and the Autonomous Region of Principe.

 

How long can a state of emergency last?

A state of emergency shall only last for as long as strictly required to protect the envisaged rights and interests and to restore normality.

Maximum duration is 15 days, without prejudice to any renewal for one or more identical periods, up to a limit of 90 days, if the cause determining it should subsist (article 3 of Presidential Decree no. 3/2020, of 18 March).

In this case, the state of emergency started on 17 March, and upon four extensions shall terminate on 31 May 2020 (article 1 of Presidential Decree no. 09/2020).

 

What are the consequences of breaching the measures ordered by the authorities during a state of emergency?

Any person breaching the provisions of Decree-Law no. 05/2020, of 24 April, Decree-Law no. 10/20, of 16 May and further legislation approved with regard to the COVID-19 May incur in criminal liability (crimes against public health and crime of disobedience), notwithstanding any other form of disciplinary or civil liability which may also arise.

With regard to additional sanctioning measures, Decree 15/2020, of 22 May, establishes a fine in the amount of 200.00 STP for those who are found in the public road or using moto-taxi services without face masks.

 

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This information is being updated on a regular basis.

The information provided and the opinions expressed herein have been prepared with the help of VdA Legal Partners and are of a general nature. They are not in lieu of appropriate legal advice in connection with specific cases.