Member Article

With effect from 14 March 2020, Rwanda’s Ministry of Health and other governmental bodies have issued several measures that will be implemented in order to mitigate the risk of the coronavirus (COVID-19). This was turned into an almost total lockdown with immediate effect by a communiqué issued by the Office of the Prime Minister on 21 March 2020 and which will be in force during a two-week period (with possibility of extension). We provide a snapshot of measures taken and their potential legal implications.

MEASURES ADOPTED

Travel

• Borders are closed except for goods and cargo as well as returning Rwandans and foreigners with residence permits who will be subjected to a two-week compulsory quarantine in a designed place.
• Travel between different cities and districts of the country are prohibited except for medical reasons or essential services and transportation of food and other essential goods.
  
  

Preventative measures

• Places of worship have been closed from Sunday, 15 March 2020.
• Schools and higher education institutions (both public and private) have been closed from Monday, 16 March 2020.
• All employees must work from home except for those providing essential services.
• Large gatherings such as weddings, concerts, festivals, exhibitions and sporting events are to be postponed, and the number of people attending burial ceremonies should be minimised.
• Shops and markets are closed except those selling food, medicines, hygienic products, fuel and other essential items.
• All bars are closed.
• Passenger transportation by motorbikes is prohibited. Other public transport within cities are allowed to operate for essentials movements with at least one meter distance between passengers.
• Restaurants and cafés may only provide take-away services.
• Unnecessary movements and visits outside homes are prohibited except for essential services such as health care, food shopping, or banking and for personnel providing those services.
  
  

Hygiene and healthcare

• All residents are urged to follow the instructions of the Ministry of Health for prevention of COVID-19, including handwashing with clean water and soap or hand sanitizers.
  
  

Judiciary

The Bureau of the High Council of the Judiciary ordered suspension of court hearings, pre-trial hearings and scheduled meetings between litigants, court administration and the Department of Inspectorate of Courts effective from 16 March 2020. However, other court services are available via online court system, known as integrated electronic case management system.

LEGAL IMPLICATIONS OF THE MEASURES ADOPTED

Measures taken affect all spheres of the country’s life with different legal implications, but below we consider potential legal implications on employment and labour relations, and ongoing contractual obligations.

Employment and labour relations

The measures adopted to prevent further transmission of COVID-19 are going to affect most if not all businesses including those that can continue their activities remotely. The question that arises relates to what employers whose businesses are severely affected by the COVID-19 outbreak (particularly those whose business cannot be continued remotely) can do to save costs during these daunting times, and if at all possible, without breaching the applicable laws, retrench their employees due to COVID-19

• Alternatives that should be considered by employers to save costs
  • An employer may be entitled, subject to certain requirements, to require an employee to take leave that has accrued. It should be however noted that in terms of article 47 of Law n° 66/2018 of 30/08/2018 Regulating Labour in Rwanda (the “Labour Code”) the annual leave schedule approved by the employer cannot be postponed or brought forward by the employer for more than a three-month period, unless it is so agreed between the employee and employer. This implies that unless agreed by the concerned employee, the employer cannot require such an employee to take leave if such leave was scheduled in a period exceeding three months.
  • An employer can suspend employment contracts with attendant benefits in accordance with article 18 (6) of the Labour Code providing that an employment contract may be suspended in case of suspension of the enterprise’s activities due toforce majeure. This option is only available for employers whose businesses are to be closed due the COVID-19 outbreak such as bars and shops selling non-essentials items.

• An employer and employee may agree to change terms and conditions of employment, i.e., reduced remuneration. Other measures could include amending working time or shift patterns, etc. It may be necessary or advisable to negotiate, and agree these changes with employees representatives or the employees themselves in the absence of such representatives and care should be taken not to breach the relevant provisions of the Labour Code.
  
  

• Can the COVID-19 pandemic lead to retrenchments?
  • Conceivably, yes. The COVID-19 outbreak may have a crippling effect on an employer’s business. In terms of article 21 of the Labour Code which provides that an employer may proceed with individual or collective dismissal due to the enterprise’s internal reorganisation or restructuring due to economic reason or technological transfer with the aim of preserving the enterprise’s competitiveness, employers whose businesses (depending on their nature) are severely affected by the COVID-19 outbreak would be entitled to dismiss some or all of their employees due to economic reasons.
  • It should however be noted that retrenchments would only be considered as a last resort, after all other ways of avoiding retrenchments have been considered and applied or rejected. Further, resorting to retrenchment would require strict compliance with the procedure and requirements provided for by the Labour Code including the applicable criteria for determining employees to be dismissed and those dismissed would be entitled to terminal benefits as provided for under article 31 of the Labour Code.
    
    

Implications of the COVID-19 outbreak on the ongoing contractual obligations

“Ad impossibilia nemo tenetur” is a Latin adage known to every lawyer and even to some non-lawyers which denotes that nobody shall be liable in case of impossibility, and this is incorporated into the laws of various countries as force majeure.

The most important question that needs to be addressed during these daunting times is whether the COVID-19 outbreak constitutes aforce majeureevent under the laws of Rwanda and therefore, parties to a contract would be exempted from performing their obligations at least during its persistence or lockdown measures declared by the Government of Rwanda. The answer to this question can be found under 92 of the Law Governing Contracts.

Article 92 of the Law Governing Contracts provides that where a party’s performance is made impossible for reasons beyond his or her control including the absence of the object matter of the contract or another case offorce majeure, his or her obligation of performance will be extinguished, unless the circumstances indicate otherwise.

The concept offorce majeureis not defined by the Law Governing Contracts, but the Supreme Court of Rwanda has in Rumanyika Jean Marie Vianney and Rusekampunzi Rumanyika Agathe v Ruzindana Egide (RCOMA 0017/10/CS, 2011) put forward three criteria that must be satisfied for a specific event to be considered aforce majeureevent. Those criteria are being unforeseeable, unavoidable and irresistible, which clearly suggests that a force majeure is an event that makes the performance of contractual obligations impossible, and accordingly circumstances making the performance of contractual obligations more onerous cannot be validly invoked as force majeure.

Considering the various measures that have been taken by various countries including Rwanda, the COVID-19 pandemic may be validly invoked as aforce majeureevent but this will have to be considered on a case-by-case basis. Equally important to note is that most sophisticated contracts include pandemics in their definitions offorce majeure, and in such cases,force majeurewould be easily invoked except in case the prevailing circumstances may suggest that the pandemic has not prevented a party from performing its contractual obligations.

The above are general guidelines, please consult your legal advisors for tailored advice.

For more information, please contact:

Désiré KamanziHead of ENSafrica Rwanda[email protected]+250 788 309 090

Dieudonné NzafashwanayoSenior Associate ENSafrica Rwanda[email protected]+250 733 300 305

William KaraigaAssociate ENSafrica Rwanda[email protected]+250 732 300 510

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.