BILL WATCH 14/2020
[14th April 2020]
Covid-19 and the Law : Part 1
The Covid-19 pandemic has reached Zimbabwe with seventeen reported cases to date, three of whom have tragically died. After initial delays, the Government has finally enacted laws which give it powers to combat the disease.
In this Bill Watch we shall describe the statutes which give the Government powers to act in an emergency such as this and shall then analyse the measures the Government has already taken to meet the emergency.
Before we do so we must emphasise that the Government has no inherent, extra-legal power to take action in an emergency such as the one posed by Covid-19. The Government cannot act outside the law: everything it does, even in an emergency, must be authorised by a law enacted in accordance with the Constitution. In other words, the Government is bound by the rule of law.
The Statutes Giving the State Power to Take Action
- The Emergency Powers Act
This is the first and most far-reaching statute available to the Government. We shall not go into the powers it confers on the Government because it becomes operative only if the President issues a proclamation declaring a state of public emergency under section 113 of the Constitution, and the President has not done so ‒ perhaps because he considered other laws were adequate, perhaps because he thought Parliament might not be able to re-assemble within two weeks to approve his declaration by a two-thirds majority as required by section 113(2) of the Constitution.
- The Civil Protection Act
Under section 27 of this Act, the President can declare a state of disaster if he considers that extraordinary measures are needed to assist and protect people against a disaster ‒ a term that is defined in the Act to include an epidemic such as Covid-19 [section 2]. He must publish the declaration in a statutory instrument “as soon as possible” after making it, and the Minister of Local Government must inform Parliament about it “on the date that it [Parliament] next sits after the declaration is made” [section 28 of the Act – note that unlike a declaration of a state of emergency, a declaration of a state of disaster under the Civil Protection Act does not have to be approved by Parliament]. A declaration of a state of disaster lasts for three months, and during that time civil protection officers can order people to keep stocks of essential supplies of fuel, food and medicines, to supply information and to perform essential services [section 22 of the Act]. Also, funds from the National Civil Protection Fund can be utilised to deal with the disaster.
The powers exercisable under the Act are not very great, which may be why, after the President declared a state of disaster on the 17th March, more robust measures were taken under the Public Health Act.
- The Public Health Act [link]
This Act, which came into force in 2018, gives the Government extensive powers to deal with “formidable epidemic diseases” ‒ and as we shall explain, Covid-19 has been declared to be such a disease in SI 77 of 2020 [link].
Under section 68 of the Act, the Minister of Health and Child Care can make regulations to deal with formidable epidemic diseases ‒ and his powers are almost frighteningly wide: his regulations can order quarantines and the isolation and detention of patients; they can provide for the closing of schools and churches, the restriction of gatherings and the closing of places of entertainment including bars and liquor outlets, order medical examinations, establish isolation hospitals, and order the evacuation and even the destruction of buildings. Regulations imposing quarantines and isolation can be backed up, if necessary by the use of force and, in cases of “absolute necessity”, by the use of firearms.
Many Initial Measures Legally Ineffective
From a legal point of view ‒ and we emphasise that this bulletin is concerned solely with the law ‒ the Government did not start well.
Initial measures to combat Covid-19 were announced by the President in addresses to the nation on the 17th and 23rd March but were not followed up quickly enough with legal instruments to give them validity. These measures were:
- A declaration of a state of disaster. The President announced this on the 17th March but it was not followed by a report to Parliament, as required by the Civil Protection Act, and the statutory instrument containing the declaration was not published “as soon as possible”, as required by the Act but six days later (in SI 76 of 2020 [link], published on the 23rd March).
- The banning of gatherings of more than 100 people, reduced to 50 people in the President’s address of the 23rd March. The ban did not become legal until the 28th March, with the publication of SI 83 of 2020 [link] (which banned gatherings of more than two people in public places).
- The closing of borders. The President announced this on the 23rd March but, like the banning of gatherings, it did not become legal until the publication of SI 83 of 2020 [link] on the 28th March.
Other measures announced by the President, such as the closure of government schools, the restriction of hospital visits and the cancellation of Independence Day celebrations, could be achieved by administrative action without the need for special legislation.
Measures Currently in Force
On the 23rd March the Minister of Health and Child Care published the Public Health (COVID-19 Prevention, Containment and Treatment) Regulations (SI 77 of 2020) [link]. The regulations:
- declare Covid-19 to be a formidable epidemic disease
- prohibit gatherings of more than 100 people, whatever their purpose
- permit compulsory testing, detention, quarantine and treatment, and
- give the Minister of Health power to publish orders in the Gazette providing for most of the matters for which regulations can be made under section 28 of the Public Health Act [see above]. Rather oddly, though perhaps wisely, the regulations require him to consult the President before publishing any orders.
Five days later, on the 28th March, the Minister published the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order (SI 83 of 2020) [link]. This order:
- provides for a 21-day national lock-down beginning on Monday 30th March and ending at midnight on Sunday the 19th April
- prohibits gatherings of more than two people in public places
- closes all airports except in Harare, Bulawayo and Victoria Falls
- permits the Minister of Home Affairs to close ports of entry such as Beitbridge and Plumtree to most traffic
- prohibits the hoarding of medical supplies and food, and
- requires local authorities, if so ordered, to make land and premises available for isolation and quarantine.
In Part 2 of this Bulletin we shall discuss the legality of these measures and the way in which they are being enforced, before (in Part 3) examining some of the individual measures in more detail.
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BILL WATCH 15/2020
[15th April 2020]
Covid-19 and the Law : Part 2
Introduction
In Part 1 [link] of this series about the measures taken by the Government to combat Covid-19, we looked at the enabling legislation under which the measures have been taken. In this bulletin we shall examine the legality of those measures and the way in which they are being enforced.
Are the Current Measures Legally Valid?
The Constitution
Many of the measures taken by the Government limit fundamental rights enshrined in the Constitution. The lock-down, for example, restricts freedom of movement guaranteed by section 66 of the Constitution; the ban on gatherings limits freedom of assembly guaranteed by section 58; compulsory testing of people infringes their right to privacy; and so on. But section 86 of the Constitution allows fundamental rights to be limited, even in the absence of a state of emergency, if the limitations are:
- imposed in the interests of public safety or public health, amongst other things, and
- imposed in terms of a law which is generally applicable, and
- “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”.
Some fundamental rights cannot be limited, in particular the right to life, the right to human dignity and the right not to be tortured or subjected to cruel, inhuman or degrading treatment.
The measures imposed so far seem to pass the tests for constitutional validity set out above ‒ though they have to be enforced lawfully and reasonably ‒ but whether they are valid in terms of the Public Health Act is another matter.
The Public Health Act
As we explained in Part 1, section 68 of the Public Health Act [link] gives the Minister of Health and Child Care very wide powers to make regulations to deal with formidable epidemic diseases such as Covid-19.
What the Minister has done, as we also explained in Part 1, is curious. He published regulations in SI 77 of 2020 [link] which prohibited gatherings of up to 100 people, provided for the compulsory testing and isolation of people, and allowed him to identify and approve isolation and quarantine centres. All these things he is empowered to do under section 68 of the Act. But in the same regulations he added a section (section 8) which states that “in consultation with the President and in conformity with any directions the President may give” he can publish orders in the Gazette restricting gatherings and the movement of people, closing schools, regulating burials, and so on ‒ all of which the Public Health Act says he can do, but by regulation not by order.
It is debatable whether section 8 is valid. On the one hand it can be said that there is no real difference between the Minister enacting measures by means of orders or by means of regulations: both orders and regulations are published in the Gazette, and whether the Minister’s instruments are called orders or regulations is not a matter of substance. On the other hand, the regulations say that the Minister’s orders have to be enacted by the Minister “in consultation with the President and in conformity with any directions the President may give”. If the President directs the Minister to make an order, the order is really made by the President ‒ and under the Public Health Act it is the Minister, not the President, who has power to make regulations or orders in relation to formidable epidemic diseases such as Covid-19.
Are any SIs Legally Valid?
There is a wider point that needs to be made. As part of the lock-down the Police and Army have prevented people from entering the central business districts of cities and towns, particularly Harare, effectively cordoning off those areas. The shop where the Government Printer ‒ Printflow (Pvt) Ltd ‒ sells Gazettes, statutes and statutory instruments is situated within the central business district of Harare, and while the lock-down continues it is not accessible to members of the public.
Under our common law all legislation must be promulgated, i.e. made public, in order to be valid. Before people can be made to comply with statutes and statutory instruments they must have an opportunity to read them or at least to become aware of them. Put differently, the Government is not allowed to enact secret laws. Over the years the requirement that legislation must be made public has been formalised to mean that statutes and statutory instruments must be published in the Government Gazette. This is now enshrined in the Constitution [link], in section 131(8) (in regard to Acts of Parliament) and section 134(e) (in regard to statutory instruments).
Now that the Government Printer’s shop has effectively been cordoned off from the public, the public does not have access to Gazettes that are on sale there. How can it be said therefore that any legislation contained in those Gazettes has been published?
What we have said here does not apply to SIs 77 [link] and 83 [link], which were published before the lock-down came into effect on the 31st March, but it does apply to SIs that have been or may be published after that date, for example SI 86 of 2020 [link].
Enforcement of the Measures
If the Government is to comply with the rule of law, it must ensure that the measures against Covid-19 are not only lawful in themselves but are enforced lawfully. This means:
- The measures must be enforced by officials who are legally empowered to do so
Section 2 of SI 77 of 2020 [link] places responsibility for enforcing them in the hands of “enforcement officers”, namely police officers, peace officers [i.e. people who have powers of arrest under the Criminal Procedure and Evidence Act], municipal police officers, the Secretary for Health, government and local authority medical officers, and certain civil protection officers.
There are two points to note here:
- Municipal police officers do not have general powers of arrest under the Criminal Procedure and Evidence Act because they are not “peace officers” as defined in that Act. Although SI 77 of 2020 makes them enforcement officers tasked with implementing measures against Covid-19, they have not been given powers of arrest to help them carry out that task.
- Members of the Defence Forces are not defined as “enforcement officers” and so neither SI 77 nor SI 83 [link] give them power to enforce measures against Covid-19. On the other hand, section 213(2) of the Constitution states:
“With the authority of the President, the Defence Forces may be deployed in Zimbabwe … in support of the Police Service and other civilian authorities in the event of an emergency or disaster.”
Presumably the President has authorised the deployment of soldiers to assist the Police in enforcing the lock-down and preventing unlawful gatherings. Even if the President has done so, however, soldiers have no power to arrest civilians as they would have done if the authorisation were given in terms of section 18 of the Maintenance of Peace and Order Act.
- The measures must be enforced reasonably.
All statutory powers must be exercised reasonably, and the powers given to “enforcement officers” under SIs 77 and 83 of 2020 are no exception. People should not be punished, for example, for cooking outside their homes in high-density areas if they have nowhere else to cook their food.
- Respect for fundamental human rights
Enforcement officers must respect the fundamental human rights of people they encounter in the course of their duties. In particular they must respect people’s right to life, to human dignity and their right not to be subjected to cruel or degrading treatment. If, as has been alleged, enforcement officers have assaulted people for disobeying the lock-down rules, or forced them to drink alcohol against their religion, then those officers deserve severe punishment. A further point that enforcement officers must bear in mind is that the right to life is sacrosanct: even though the Public Health Act envisages the use of firearms to impose quarantines and lockdowns the firearms must not be used to kill people.
In Part 3 of this series of Bulletins we shall examine some of the specific measures taken to combat Covid-19, in particular the national lock-down and the prohibition against gatherings.
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BILL WATCH 16/2020
[16th April 2020]
Covid-19 and the Law : Part 3
Introduction
In Parts 1 [link] and 2 [link] of this series we examined the laws that authorise measures to be taken against the Covid-19 pandemic. In this part we shall focus on particular aspects of the lock-down and the prohibition of gatherings. Before doing so, however, we have to correct an error we made in an earlier bulletin.
Correction to Bill Watch 15/2020
In Part 2 of this series of Bill Watches we were incorrect in saying that members of the Defence Forces were not “enforcement officers” for the purposes of the Public Health (Covid-19 Prevention, Containment and Treatment) Regulations. They are. The definition of “enforcement officer” was amended by SI 82 of 2020 [link] to include them, if they have been authorised by their commanding officers to help enforce anti-Covid measures and the President has authorised their deployment in terms of section 213(2) of the Constitution. [We presume this was done, but there has been no public announcement to that effect]
Even though members of the Defence Forces are enforcement officers, however, the regulations give them no power to arrest civilians, as we said in our Bill Watch.
The National Lock-down
Section 4 of the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) Order (SI 83 of 2020) [link] imposes a national lock-down for 21 days, ending at midnight on the 19th April. During that period:
- All individuals are confined to their homes, though they are allowed out temporarily to obtain necessary supplies, or to obtain medical assistance, or to engage in an essential service.
- Most businesses are closed
- Transport services, particularly for passengers, are severely restricted.
Details of the prohibitions and restrictions imposed during the lock-down are contained in the Order, which can be accessed on the Veritas website [link].
Two points need to be considered:
Is the lock-down reasonable?
It is a well established rule of law that regulations, rules and orders made under an Act of Parliament are invalid if they are not reasonable. It is presumed that when Parliament gives a Minister power to make regulations it intends the Minister to exercise the power reasonably; if he or she does not, then the regulations are invalid. However, what seems unreasonable to one person may appear quite reasonable to another, so courts will not declare regulations invalid unless they are grossly unreasonable; unless, as was said in an old case, they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable people.
The lock-down imposed by SI 83 of 2020 is very stringent indeed. Everyone in the country, with few exceptions, is supposed to stay at home for 21 days and venture out only in case of necessity and for short distances (no more than five kilometres). This will cause hardship for everyone, but for the poorer sections of our society the hardship will be drastic indeed because they live from hand to mouth and lack the resources to stay away from work for 21 days. The Government’s financial assistance for needy families, inadequate as it is, has only just begun to be paid ‒ three days before the lock-down is due to end.
On the other hand, the hardship caused by the lock-down must be weighed against the need to save lives by stopping the COVID 19 pandemic from spreading. Throughout the world, lock-downs have proved to be the best way of doing that.
Balancing these considerations, can the lock-down be said to be grossly unreasonable? It is causing hardship to most of us and extreme hardship to many, but it will save the lives of some of us. Put like that, it is hard to see a court holding that the regulations imposing the lock-down are so unreasonable as to be invalid. Perhaps the unreasonableness lies in the Government’s failure to provide assistance to those who need it, rather than in the lock-down itself.
Ending the lock-down
According to SI 83 of 2020 the lock-down is to last for 21 days. It will come to an end at midnight on Sunday the 19th April.
The Government has given no clear indication of whether it will let the lock-down lapse on the 19th or extend it; or, if it extends the lock-down, whether it will do so wholly or partially, throughout the country or only in some areas.
Time is getting very short for the Government to make a decision, as we pointed out in a bulletin issued earlier today. People need to know in advance whether they will be free to leave home on the 20th April and go about their business or whether they will face a further lock-down. Factories and businesses cannot just start up on the instant; their managers have to know in good time when they can prepare to resume working.
The President has suggested he will make a decision on the 20th April, but by then it will be too late to extend the lock-down: it will have come to an end and will have to be re-imposed rather than extended. In any event, the lock-down cannot be extended by presidential announcement. If the extension is to be lawful, SI 83 of 2020 will have to be amended ‒ and the amendment must be made by the Minister of Health and Child Care, not the President.
Prohibition of Gatherings
The restrictions on gatherings imposed by SIs 77 [link] and 83 [link] of 2020 are not entirely clear.
Section 5 of SI 77 of 2020 (the regulations under which SI 83 was made) states baldly:
“… all gatherings for whatever purpose, are hereby prohibited during the period when [the declaration of Covid-19 as a formidable epidemic disease is in force, i.e. until the 20th May ‒ we shall discuss this later].”
A gathering is defined in section 2 of the SI as an assembly of more than 100 people, whether in the open or in a building; but the definition allows orders made in terms of section 8 of the SI to reduce the number of people constituting a gathering.
Section 5 of SI 83 of 2020 (the order made in terms of section 8 of the regulations) states that, from the 30th March to the 19th April [i.e. for the period of the lock-down]:
“… no gathering of more than two individuals in any public place are [sic] permitted except in the following cases …”
and then follows a long list of exceptions where up to 50 people can gather to queue for transport or attend a funeral or an apparently unlimited number can gather to do their shopping at a supermarket or food store, wait for treatment at a hospital, etc. Section 4(1)(h) of SI 83 of 2020, moreover, allows an apparently unlimited number of motorists to queue for fuel.
At first sight SI 77 of 2020 (the regulations) and SI 83 of 2020 (the order) appear to be inconsistent, in that SI 77 bans all large gatherings while SI 83 of 2020 allows them to take place in certain circumstances. In fact there is no inconsistency. If the two SIs are read together the position appears to be this:
- All gatherings of more than 100 people, for whatever purpose, are banned completely until the 20th May.
- For the period of the lock-down, which is due to end on the 19th April, smaller gatherings of 100 people or less can take place for the purposes laid down in sections 4 and 5 of SI 83, for example:
- queuing for transport (but not more than 50 people in the queue)
- attending a funeral (again, not more than 50 people)
- shopping at a supermarket or retail shop (so long as there are no more than 100 people there)
- seeking treatment at a hospital (again, no more than 100 people)
- queuing for fuel (so long as there are no more than 100 motorists in the queue).
In all other cases, while the lock-down is in force no more than two people can be together in a public place, and they must maintain social distancing, i.e. they must keep at least one metre apart.
Open-air markets
At the beginning of this month the President ordered Mbare Musika and similar open-air markets to be opened so that farmers and vendors could earn a living by selling their produce and people in high-density urban areas would have access to food. However, SI 83 of 2020 has not yet been amended to allow people to leave their homes and go to such markets, nor to impose necessary restrictions on social contact within the markets. Hence, if more than two people congregate in an open-air market they must be dispersed by enforcement officers under section 5(2) of SI 83 of 2020 ‒ the section gives enforcement officers no discretion in the matter. If people refuse to leave a market in response to such an order they are guilty of a serious offence under section 5(3) of SI 83.
This is another illustration of how important it is for the Government to act through the law and in accordance with the law, rather than making announcements and issuing instructions that have no legal effect. As we pointed out in the first of this series of Bill Watches, the fight against Covid-19 does not put the law into abeyance; it must be conducted with proper regard for the rule of law.
A Note on Formidable Epidemic Diseases
As we noted earlier in this bulletin, the declaration of Covid-19 as a formidable epidemic disease is only temporary. Section 3 of SI 77 of 2020 declares Covid-19 to be a formidable epidemic disease until the 20th May 2020, though the Minister of Health and Child Care may publish notices in the Gazette extending the declaration for periods of one month at a time.
Why the declaration should be only temporary is not explained, and seems odd. The Public Health Act defines other diseases such as cholera and typhoid as formidable epidemic diseases but does not fix a time-limit on their status as such. Why Covid-19 should be different may be clear to epidemiologists but is a mystery to everyone else.
Need for Publicity on the Law
To conclude this bulletin, we urge the Government to publicise, accurately and fully, the measures it is taking to combat Covid-19. If members of the public are fully aware of what they can and cannot do, and how important it is to comply with the measures for their own protection, they will be much more likely to comply voluntarily. The Police and Defence Forces too should be instructed on what the law is and how important it is to persuade the public to observe the law, rather than trying to compel compliance through force.
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.
If you want to contact Veritas, have any questions or wish to subscribe or unsubscribe please email [email protected]
If you are looking for legislation please look for it on www.veritaszim.net
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