The infectious Coronavirus disease, COVID-19, is declared as a pandemic, i.e. as a Public Health Emergency of International Concern, on 30 January 2020, by the World Health Organization. COVID-19 is having far reaching impacts on all aspects of human life and the global economy. In this legal brief attempt will be made to assess its impacts from the three perspectives of the Ethiopian laws.
As possible cause for declaring state of emergency: the provision of Article 93 (1) (a) of the Constitution of the Federal Democratic Republic of Ethiopia (herein after referred to as the Constitution) empowers the Council of Ministers of the Federal Government to decree a nationwide state of emergency, and to present the same to the (dis) approval of the House of Peoples’ Representatives. Where the House of Peoples’ Representatives is in session, the executive organ of the government is required to submit it within 48 (forty-eight) hours and where it is not in session it should be presented within 15 (fifteen) days of its adoption.
The House of Peoples’ Representatives is entitled to approve the state of emergency where it gets the two third approval of its members. The state of emergency can remain in effect up to 6 (six) months and can be further extended every 4 (four) months, successively, where the same is approved by two-third majority of the House of Peoples’ Representatives.
In case where it is approved, the federal government is entitled to impose restrictions on certain freedoms and liberties of individuals, including suspending the political and democratic rights, to the extent it deems that such restrictions warrant the aversion of the conditions that necessitated the declaration of the state of emergency.
However, such restrictions does not entitle the federal government to change the nomenclature of the State (as stated under Article 1 of the Constitution), to undertake inhuman treatments (as stated under Article 18 of the Constitution), to affect the right of equality (as stated under Article 25 of the Constitution), and to limit the right of self-determination and the right to language and culture of Nation, Nationality and People in Ethiopia (as stated under Article 39 (1) and (2) of the Constitution).
As one aspect of force majeure: the Ethiopian Civil Code of 1960 (herein after referred to as the Civil Code) has exempted a contracting party from liability to make the damage good where such party proves that such performance is prevented by force majeure. The provisions of Articles 1792 to 1794 have defined force majeure, listed out occurrences that constitute force majeure and those that cannot be deemed as occurrences of force majeure, unless otherwise agreed by the contracting parties, respectively.
In general, force majeure is any occurrence, which a contracting party could not normally foresee and which absolutely prevents such contracting party from performing his obligations. “Official prohibitions” which results from the state of emergency as result of pandemics like COVID-19 or COVID-19 as by itself can be construed a “natural catastrophe”, can be good examples of vis maior, (equivalent of ‘superior force’ in Latin), which denotes an event making a performance of an obligation impossible.
Hence, it can be legally argued that a contracting party whose performance of his obligation is affected by the pandemic like COVID-19 cannot be held liable to make good the damage the other party has sustained as result of such failure.
Its adverse impacts on employee-employer relationship: as corollary to the above argument, COVID-19 as pandemic resulting in force majeure, has adverse impacts on employee-employer relationships. As stated under Articles 17 to 22 of the Labour Proclamation No. 1156/2019 (herein after referred to as the Labour Proclamation) where such force majeure situation occurs, it entails the suspension of the contract of employment that is concluded between the employer and the employee, which in turn exempts the employer from paying salary and other benefits and exempts the employee not to perform the work of the employer.
The grounds for such suspension are deemed to exist where they lead to the full or partial suspension of the activities of the employer for a period not less than 10 (ten) consecutive days. An employer who wishes to suspend the rights and obligations arising from the contract of employment is duty bound to inform the Ministry of Social and Labour Affairs or the competent authority having similar mandate in area where the employer operates.
The Ministry or the competent authority after reviewing the application of the employer for the suspension of the contract of employment due to force majeure situation can decide to allow or disallow such suspension, within 3 (three) days from the date of application; where it failed to decide within this period, the suspension shall be deemed as allowed. Where allowed, the suspension can last up to 90 (ninety) days and where it is deemed that the situation has continued and hence the employer cannot resume its activities after the end of the approved suspension period, then the contract of employment will be terminated and the employee will be entitled to the payments of the benefits as stated under Articles 39 and 44 of the Labour Proclamation.
Alternatively, the unforeseen occurrences like COVID-19 can also lead to the reduction of workforce, as envisaged under Articles 28 (3) and 29 of the Labour Proclamation. Reduction can occur where the number of the employees affected represents at least 10 (ten) % of the employees of the employer, or where the number of the employees is between 20 (twenty) and 50 (fifty), where it affects at least 5 (five) employees. In addition, the employer is required to observe the strict procedures of reduction as provided under Article 29 (3) of the Labour Proclamation and the Directive issued by the Ministry of Social and Labour Affairs on Reduction of Work Force on Mizia 18th 2002 E.C.
In case where the employer undertakes legally acceptable reduction of workforce, it is required to effect payments to the affected employees. These payments are: severance payment (as stated under Articles 39 (1) (c) cum 40 (4) of Labour Proclamation) and notice period payment (as stated under Articles 35 (1) (d) cum 44 of Labour Proclamation). Source: millionlegalservices.com