Considering the public health emergency caused by COVID-19 and the need to adopt measures to both prevent and combat the spread of the pandemic, the Government of Cabo Verde adopted a series of measures with a view to implementing the recommendations issued by the World Health Organization ("WHO"), which were later synthesized in the National Contingency Plan, approved by Resolution no. 46/2020, of 13 March, 2020 ("PNC"). Thus, and as provided for in the PNC, following the confirmation of the first case of local transmission of COVID-19, the National Emergency Plan was activated and a public disaster situation was declared, and new measures were put in place by the Government in order to contain the spread of the disease.

The state of emergency started in Cape Verde at 00.00 on March 29th, pursuant Presidential Decree No. 06/2020 of March 28th, 2020. The state of emergency was extended until 23h59m: (i) on April 26 on the islands of Santo Antão, São Nicolau, Sal, Maio, Fogo and Brava, (ii) on May 2 on the island of São and (iii) on May 14 on the island of Boavista, having ceased its effects on those islands pursuant to Presidential Decree No. 07/2020 of April 17th, 2020 and Presidential Decree No. 08/2020 of May 2nd, 2020, respectively.

Given that the persisting public calamity situation resulting from the COVID-19 disease on the island of Santiago, the state of emergency has now been extended for a third time, with effect only on this island, pursuant to Presidential Decree No. 09/2020 of May 14th, 2020 ("Presidential Decree No. 09/20"). It is necessary to address some essential issues of this regime and the how they were regulated by the Government, through Decree-Law no. 51/2020, of May 14th, 2020 ("Decree-Law no. 51/20").

 

What is a state of emergency?

After hearing the Government and obtaining the National Assembly's authorization (and/or that of the Permanent Commission), 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 27, 103.2, 135.2(h), 144.1, 148.5(d), 152, 154.1, 159.2, 175(j), 175(g), 180(e), 203.1(k) and 203.2(b), 248, 271 a 276 of the Constitution of Cabo Verde, as well as in Law no. 94/II/90, of November 27, 1990.

 

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 and duration and the resources used, to what is strictly necessary to safeguard the rights they intend to protect and to restore normality.

 

Can the State adopt just any measure?

The state of emergency cannot affect rights of superior constitutional dignity identified in the law and 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 or undermine the constitutional rules regarding the competence and functioning of the sovereign bodies, the rights and immunities of the members of those bodies, the rights to life, personal integrity, personal identity, civil capacity and citizenship, freedom of conscience and religion,  the non-retroactivity of criminal law and the defendants' right of defence.

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

In the present case, the declaration of a state of emergency partially suspended the following rights:

(a)           Right to freedom, including the right of circulation and migration and people movement in the island (the public authorities having been granted the necessary powers to impose any restrictions required to reduce the risk of contamination and implement measures to prevent and combat the epidemic, including national and international travel ban, by any terrestrial, air or maritime means compulsory home, medical establishment confinement or any other place as established by the health authorities and a ban on travel and on loitering);

(b)           Right of circulation (public authorities can, with respect for regional and international agreements, establish border checks on persons and goods, including health checks at ports and airports), with the purpose of preventing entry to the island, measures for the temporary seizure of any type of vehicle, whether or not motorised, used in breach of the imposed confinement measures);

(c)            Workers’ rights (the public authorities may order staff from both public-law and private-law entities to report to work and, if required, to perform their duties in a different workplace, for a different entity or under different conditions and during different work schedules); in particular of those working in vital sectors of health, economy and public order);

(d)           Property and private enterprise (the public authorities can order for the suspension of activity of private companies, in general or that integrate certain sectors, in the territory covered by the state of emergency or part of it, may be prohibited, provision of any services and the use of both movable and immovable property, healthcare units, commercial and industrial establishments, companies and other production units);

(e)           Right of assembly and protest (the public authorities can impose any restrictions required to reduce the risk of contagion and implement measures to prevent and combat the epidemic, including limiting or banning meetings, protests, rallies, assemblies, conferences, congresses involving a COVID19 transmission risk);

(f)             Freedom of worship (the public authorities can impose any restrictions required to reduce the risk of contamination and implement measures to prevent and combat the pandemic, including limiting or banning religious celebrations and other worship events, involving public gatherings involving a COVID19 transmission risk);

(g)           Freedom to learn and to teach, although restrictions necessary to reduce the risk of contagion and to implement measures to prevent and combat the pandemic, including prohibiting or limiting face-to-face lessons, the early end of school year adjusting grading methods and suspending or rescheduling examinations or the opening of the school year, and any adjustments to the model for access to higher education, may be imposed by the proper public authorities);

(h)            Personal data protection (public authorities may require telecommunications operators to send SMS to their customers with alerts from the Health Authorities or others in connection with the fight against the pandemic).    

Any other limitation or restriction on the rights, freedoms and guarantees which remain in force in the exact same terms enshrined in the Constitution, namely freedom of expression and information and freedom of the press, as well as political rights, including democratic opposition, which shall be expressly prohibited.

 

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

A state of emergency may be declared regarding all or part of the national territory, depending on the geographical scope of the underlying causes. Among others, measures can be adopted to restrict circulation or impose forced quarantine in certain areas.

In the present case, the renewed declaration (initially covering the entirety of the national territory) was now extended and applies exclusively to the Island of Santiago (Article 1 of Presidential Decree 09/20).

 

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 30 days, without prejudice to any renewal for one or more identical periods if the cause determining it, should subsist.

In the present case, the state of emergency began at 00.00am of March 29th and expired at 11:59 p.m: (i) on April 26, on the islands of Santo Antão, São Nicolau, Sal, Maio, Fogo and Brava, (ii) on May 2, on the island of São and (iii) on May 14, on the island of Boavista. With the renewal resulting from Presidential Decree no. 09/20, the state of emergency is currently in force only on the island of Santiago and will continue until 11:59pm on May 29.

 

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

Any person breaching the provisions of Presidential Decree 09/20, Decree-Law 51/20 and other laws enacted on COVID 19 incurs criminal and administrative offense liability and can be punished with fines of between CVE 5,000 and CVE 15,000, in the case of individuals, and of between CVE 15,000 and CVE 50,000, in the case of corporate persons, notwithstanding any other form of disciplinary or civil liability which may also arise. 

 

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.