Moroccans, like the citizens of other democratic countries in times of peace, have learned to take for granted some fundamental rights, including the freedom of movement and assembly. In the attempt to contain the spread of COVID-19, it has suddenly become evident to them that the enjoyment of these rights can be limited.
This paper enquires about the compatibility of the state of health emergency proclaimed by the government and approved by the parliament in March 23, 2020 with Morocco’s obligations under international human rights law, and particularly the African Charter of Human and Peoples Rights (ACHPR) and with the International Covenant on Civil and Political Rights (ICCPR). While there are many human rights aspects relevant to the issue of combating the COVID-19 pandemic, this paper restrict itself to showing that the measures taken by the Moroccan authorities are so far compatible with international human rights law. The myth that the state of health emergency cannot be adopted in a state of law should thus not be used as an excuse to avoid taking similar steps elsewhere to stop the COVID-19 pandemic.
Overview of the State of Health Emergency
The situation in Morocco has been evolving fast, and so has the Moroccan authority’s response. Based on Article 81 of the Moroccan Constitution, in extraordinary cases of necessity and emergency, the government can adopt decrees having the force of law, which are immediately binding on adoption, but require parliamentary approbation.
On March 23, 2020, the parliament adopted the bills 2.20.292 / 2.20.293 establishing the state of health emergency on the national territory and empowering the government, to take all measures aimed at the containment of COVID-19. Thus, all gatherings of people are forbidden, and the movement of people is restricted to exceptional circumstances of necessity, health reasons and demonstrated work-related exigencies. People circulating anywhere on the national territory, including on foot, can be stopped by law enforcement officials and asked to make a written declaration explaining how one of these exceptions justifies their being outside. All retail trade is suspended, save for essential goods (including food, medicines, and their supply chains,) and banking, financial, and insurance services. Bars, restaurants, museums, cinemas, theaters, hairdressers, gyms, pools, soccer games, and the like are closed, as are schools and universities (distance learning has been implemented). All sport and cultural events are cancelled, and no religious or civil ceremonies (including funerals) can take place. Places of worship are closed, and prison visits have been suspended. Employers are encouraged to let their employees work from home or take paid leave of absence. Workers in the health sector, however, cannot take any leave.
The violation of any of these provisions amounts to a criminal offense, punished with detention of up to three months and a fine of between 300 and 1300 dirhams. The state of health emergency is valid until April 20, 2020. Based on the Chinese, Taiwanese, South-Korean, and Austrian experiences, the government expects to see some results within this timeframe in terms of a slowing-down of the spread of the virus within this timeframe. The government will then evaluate what measures to take next.
The Compatibility of the State of Health Emergency with International Human Rights Law
The containment measures adopted by the Moroccan authorities evidently have a huge impact on the economy of the country and on the daily life of people subjected to the measures, and on their enjoyment of personal freedoms. Calls to take containment measures that respect human rights have been issued by scholars, as well as by the United Nations High Commissioner for Human Rights (UNHCHR), and by the World Health Organization Director-General.
It is worth recalling that some human rights (such as the freedom from torture and slavery) are absolute and allow for no limitations, or balancing with other rights or derogations. However, most human rights are not absolute and can be restricted, albeit within certain limits. Limitations / restrictions on non-absolute rights are allowed when they are prescribed by law, pursuant to a legitimate aim, and when this is necessary in a democratic society, and is proportionate to the identified legitimate aim. Limitations allow for the balancing of individual and collective interests and are built into several provisions of the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples’ Rights (ACHPR).
While worded in slightly different ways, both the ACHPR and the ICCPR identify legitimate aims including national security, public safety, public order, and public health or morals, as grounds for limiting, by law and when necessary and proportionate to such identified aims, the following rights: the right to respect for private and family life (Article 6 ACHPR), freedom to manifest one’s religion or belief (Art. 8 ACHPR and Art. 18 ICCPR), freedom of expression (Article 9 ACHPR and Article 19. ICCPR), freedom of assembly and association (Article 10 and 11 ACHPR and 21-22 ICCPR), and freedom of movement (Article 12 ACHPR and Article 12 ICCPR).
The containment measures outlined in the decrees adopted by the Moroccan authorities seem fully in compliance with the limitations imposed by the ACHPR and ICCPR on the enjoyment of these fundamental rights. In particular, they have been adopted by law, with the legitimate aim of protecting public health from a pandemic, and are both necessary and proportionate. In fact, measures limiting social contacts are not only adequate, but have proven to be the only effective measures to limit the spread of COVID-19. Moreover, the measures imposed by the Moroccan government are strictly limited (materially and in time) to the exigencies of the situation.
Additionally, both the ACHPR (Article 5) and the ICCPR (Article 8.3.c.iii) exclude from the definition of forced or compulsory labor, which is prohibited under both treaties, “any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. The prohibition on Moroccan health workers taking days off falls squarely under this clause. The right to personal freedom is clearly also impacted by the containment measures, particularly in relation to the mandatory confinement of individuals who tested positive for the new coronavirus. Deprivation of liberty, including by involuntary hospitalization and mandatory quarantine, in this case is mandated by law and is not arbitrary under Article 9 ICCPR. However, the provision allowing “the lawful detention of persons for the prevention of the spreading of infectious diseases”, in Article 5 of the European Human Rights Convention (ECHR) has no equivalent in the ACHPR.
So far, the state of health emergency in Morocco appears to be consistent with Morocco’s human rights obligations. Exceptionally, further restrictions could be imposed not through simple limitations, but rather through derogations. While some provisions of the ACHPR and the ICCPR cannot be derogated from in any circumstance, both instruments allow for derogations from some obligations in times of public emergency when the life of a nation is threatened (Article 4 ICCPR). In the African context, the absence of an ability to derogate under the ACHPR has been confirmed by the African Commission on Human and Peoples’ Rights, which has found that the rights recognized in the African Charter cannot be limited or restricted on account of emergency or special situations. For example, in Media Rights Agenda and Others vs Nigeria (2000), the African Commission stated that: “in contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore, limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances. The only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in article 27(2), that is, that the rights of the Charter shall be exercised with due regard to the rights of others, collective security, morality and common interest”. Derogations are allowed only to the extent that they are strictly required by the exigencies of a situation and are not inconsistent with the state’s other obligations under international law. Derogations must also follow the procedure outlined in the relevant treaty provisions. In General Comment No. 29, the Human Rights Committee, explained that: “If states purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation. In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (article 12) or freedom of assembly (article 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation”.
These considerations seem to be applicable also in cases of epidemics or pandemics, which was not explicitly considered by the Committee. If the Moroccan authorities thus decided to take further steps and derogate from some of its obligations under international human rights law, it would have to justify such an extreme choice accordingly.
The Role of the Precautionary Principle in the State of Law
The precautionary principle is a well-known concept in areas of risk regulation, primarily concerning human health or environmental protection. The African Union brought forward an approach to the precautionary principle in 2003, during the adoption of the Maputo Protocol to the African Charter of Human and Peoples Rights: Article 4 stresses the necessity of adopting and implementing preventive measures and to apply the precautionary principle: “The parties shall adopt and implement all measures necessary to achieve the objectives of this convention, in particular through preventive measures and the application of the precautionary principle, and with due regard to the ethnical and traditional values as well as scientific knowledge in the interest of present and future generations”. Accordingly, the precautionary principle is used to resolve the dilemma that policy-makers face when balancing the freedom and rights of individuals or businesses, with the necessity to mitigate the risk of adverse effects to human health. Risk regulation is inherently linked to uncertainly that policy-makers must deal with in the case of COVID-19, in terms of respect of the state of law. Yet, policy makers are responsible for determining a level of risk and uncertainty appropriate for a society to bear. For this reason, the precautionary principle allows governments to act temporarily, even without having to wait until the reality and seriousness of risks become fully apparent. In the European context, the European Union Court of Justice (EUCJ) has produced a substantial amount of jurisprudence on cases dealing with risk regulation. It follows from the CJEU’s jurisprudence that the precautionary principle requires: “competent authorities to take appropriate measures to prevent specific potential risks (…) by giving precedence to the requirements related to the protection of those interest over economic interests”.
From a legal perspective, proper risk regulation within the framework of the state of law requires scientific risk assessments, based on which competent public authorities can ascertain whether matters have gone beyond the level of risk that it deems acceptable for a society. So, as the COVID-19 pandemic has demonstrated, the precautionary principle reconciles scientific analysis and political reactivity. The current state of health emergency represents political decisions that are underpinned to a great extent by medical research and studies that provide technical input into the political decision-making process. On the other hand, for economic crisis management confronted in the faces of the challenges caused by an exogenous shock such as COVID-19, one may draw some conclusions from an analogy with the precautionary principle, as is well-known from legal scholarship in risk regulation.
However, getting policy-makers to use science in risk management seems like a difficult undertaking. Nonetheless, continuously updated scientific research and evaluations with regard to crisis development urge policy-makers to adjust their policy measures, and require re-evaluations of whether the state of health emergency is remains legal. In Morocco, the legality of the state of health emergency should to be assessed on the basis of scientific knowledge at any particular point in time. In a crisis situation, with having a crisis situation that is uncertain in terms of whether and under what circumstances it will worsen or improve, the state of health emergency needs to be backed by scientific justifications.
While our analysis shows that the state of health emergency complies with Morocco’s obligations under international human rights law, it is undeniable that fighting COVID-19 poses many challenges to the protection of human rights. One must also recognize, however, that, based on evidence from East Asia (China, South-Korea, Taiwan), stronger measures to limit social interaction and movement seem to be the only way to address the health crisis. While governmental action in imposing containment measures should be constantly monitored in relation to human rights standards, we should encourage the taking of containment measures that enforce social distancing, which temporarily limit some of our individual rights in order to protect public health.
The opinions expressed in this article belong to the author.
 Alicia Ely Yamin and Roojnin Habibi. Human Rights and Coronavirus: what’s at stake for Truth, Trust and Democracy? Health and Human Rights Journal. March 1, 2020. Available at https://www.hhrjournal.org/2020/03/human-rights-and-coronavirus-whats-at-stake-for-truth-trust-and-democracy/
 Michelle Bachelet. Coronavirus: Human Rights need to be front and center in response. March 6, 2020. Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25668&LangID=E
 WHO Director-General’s opening remarks at the media briefing on COVID-19. March 11, 2020. Available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020