During the Council of Ministers of March 24, 2023, the Burkinabè government declared a state of emergency as of March 30 in twenty-two provinces in eight regions of Burkina. To find out more about the concept of the state of emergency, we spoke with Dr Diassibo Thomas YONLI, teacher-researcher at the Nazi BONI University, also Executive Director of the African Center for Law and Administration (CADA ). Here’s what he says!
How do you explain the notion of a state of emergency in general?
The state of emergency is a measure of reinforcement of the administrative police powers provided for in article 58 of our Constitution. This decision therefore allows the administrative authorities (President of Faso, minister in charge of security, various authorities) to take decisions that could infringe the rights and freedoms guaranteed by the constitution. Thus, restrictions on individual and collective freedoms are permitted, in particular curfews, prohibition of movement, demonstration, etc. It is a veil over the law in order to give the State the means to better deal with any situation resulting from a threat to public order. It is a question, so to speak, of “legalizing”, therefore of justifying the infringements of our rights.
When can a government declare a state of emergency?
The government decrees a state of emergency in the event of serious danger resulting from a particularly dangerous situation for public order, in this case because the safety of persons and property is threatened and the law in force proves to be insufficient to restore order. The government decrees a state of emergency in the Council of Ministers on its own initiative, but after about a week, it must obtain authorization from the National Assembly (in this case the Transitional Legislative Assembly) for a period longer. Moreover, this is not new, the first experimentation of the state of emergency dates from December 31, 2017 in the context of the fight against terrorism. For the occasion, Law No. 023-2019/AN of May 14, 2019 regulating the state of siege and the state of emergency in Burkina Faso had been adopted. Let’s not forget that there was a state of health emergency to deal with Covid 19. We still remember the restrictions relating to the curfew and the absolute ban on driving. In fact, as long as the threat for which the state of emergency was declared persists, the government is entitled to take any measure that may infringe our rights and freedoms. Thus restrictions on the freedom to come and go, on the freedom to demonstrate and even on the freedom of opinion or of the press can be legally and perfectly taken. However, these measures must be proportionate to the threat invoked by the government. That is to say that the measure must be adapted to the aim sought, necessary for the achievement of the aim pursued and proportionate in relation to the result pursued. In all cases, citizens can seize the constitutional judge or the administrative judge who remains, as the case may be, competent according to the ordinary procedure. It is the guarantee of the State. The rule of law does not prevent the government from taking the decisions it considers opportunely and sovereignly necessary to fight against a crisis, but the possibility must be given in all circumstances to citizens to be able to challenge it before the constitutional or administrative judge. , notably.
What explanation can you give for the state of emergency in this time of terrorism?
The declaration of the state of emergency is justified by the terrorist threat. All the States which have been confronted with the terrorist threat to a lesser degree have reacted with the legal instruments of the rule of law; others have even over-acted like the United States of America which has denied all humanity to terrorists by denying them any access to American justice with the creation of Guatamano to judge them with massive violations of human rights the man. The state of emergency legalizes a priori the decisions of the government. We know in law that in the face of an emergency, the government is entitled to take measures to restrict our freedoms, even if it means returning to seize after the Transitional Legislative Assembly. It is in fact accepted that “when the house burns down, you don’t have to first ask the judge for permission before sending the firefighters there”. In short, the government acts before justifying itself. It is the application of the privilege of the preliminary and/or the decision of office which benefits the administration. Terrorism or acts of terrorism constitute a dangerous situation that it is conceivable for the government to take the measures required for the circumstances. It is in fact up to the government to assess the advisability of declaring a state of emergency. But he is even obliged to do so, otherwise he can be held responsible for the breaches of public order that his inaction would inflict on the populations.
What difference is there between the state of emergency and the state of siege because some do not know how to distinguish between the two notions.
It is to be feared that if the threat does not decrease significantly that the government may use other legal tools provided for by our Constitution such as the state of siege or that the President of Faso may use the exceptional powers provided for in article 59 of the constitution. Which would be perfectly legal, because the legal order must be able to respond to any threat and the law gives all the instruments to the government to act.
To come back more specifically to your question, between a state of emergency and a state of war, there is essentially a difference in degree in the possibility given to the government to infringe the rights and freedoms guaranteed by the constitution in a legal way. . Admittedly, in the cases provided for in article 58 of the constitution, it is up to the government to decide in the Council of Ministers, even if it means having a law passed later by the Transitional Legislative Assembly. As a general rule, Parliament gives the requested authorization because it is the government that has the necessary information on the real situation in the country. And in times of crisis, all institutions surrender to the government. This is valid in all countries. To my knowledge, the state of siege has not yet been really tested in any State. Theoretically, it corresponds to a situation where police powers now come under the military authorities. It authorizes restrictions on the most diverse individual or collective freedoms almost without limit. We would almost find ourselves in a situation of an emergency regime where without a formal suspension of the Constitution, the President of Faso and the Government arrogate to themselves all the powers necessary to fight against the threat (terrorism for example). Moreover, the President can use article 59 which seems to correspond to the current threat.
Your final word
I would like to end by saying that the culmination of all these possibilities of restrictions on our rights and freedoms is that they must be proportionate and justified. It is up to the government to assess the appropriateness of the said measures, but they remain justiciable even after the end of the situation which prevailed in their taking.
Interview conducted by
Ben Alassane DAO
