On the 20th August the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lock-down) (Consolidation and Amendment) Order, 2019 was published in the Gazette as SI 200 of 2020. It can be accessed on the Veritas website [link].
As its name suggests, the new Order re-enacts the previous order, incorporating all the amendments made to it, and making a few additional changes. These changes are:
· Whereas previously the curfew came into effect at 6 p.m. every day, it now starts at 8 p.m. and ends at 6 a.m. the next morning. Similarly, businesses were required to close at 3 p.m. every day but now they can remain open until 4.30 p.m. These changes were announced as a Cabinet decision on the 18th August but only came into effect legally when the new Order was published on the 20th.
· Border closure orders made under section 8 of the old order prohibited most people from entering and leaving Zimbabwe, but under the equivalent section of the new Order, border closure orders do not affect:
· the departure of temporary visitors or of residents who are leaving for three months or more
· the entry of experts and specialists employed or retained by foreign investors so long as the Zimbabwe Investment and Development Agency is satisfied that they really are experts and specialists. This is a restriction: previously all employees of foreign investors were allowed to enter the country
· the entry and departure of foreign heads of State and Ministers, as well as foreign envoys and dignitaries who enter Zimbabwe on official business. This will not change anything: they have been entering Zimbabwe since the lock-down, without apparent hindrance.
· Whereas citizens and residents returning to Zimbabwe from outside the country could be quarantined for 21 days, the period is now reduced to 14 days.
· The work of the Zimbabwe Electoral Commission is declared to be an essential service, which means that the Commission can carry out its work free from most lock-down restrictions. Note, though, that political parties do not enjoy similar freedom.
· The new stock exchange at Victoria Falls is also declared an essential service.
· Parliamentary committees that hold public hearings are responsible for ensuring the disinfection of the venues where the hearings are held as well as all furniture used for the hearings.
Need for consolidation
It was high time the old Lock-down Order was republished. It had been amended 15 times and had become virtually impossible to follow, though people who accessed our consolidated version on the Veritas website should have had less difficulty.
Who made the new Order?
The new Order was purportedly made by “the Minister of Health” but there has been no such Minister since Dr Obadiah Moyo was dismissed in early July. On the 4th August the President’s Office announced that Vice-President Chiwenga had been appointed Minister of Health and Child Care with immediate effect. Such an appointment was illegal, however, as we pointed out in Bill Watch 53/2020 of the 5th August [link] because section 103 of the Constitution prohibits Vice-Presidents from holding other public offices such as that of Minister ‒ though section 99 allows them to be given responsibilities including the administration of a Ministry or department. If therefore the President’s announcement meant what it said ‒ that VP Chiwenga was being appointed Minister of Health rather than administrator of the Ministry of Health ‒ then the appointment was illegal.
The point is not just a legalistic quibble. If the new order was made by someone who had no right to make it, then it is void.
New Order not user-friendly
The new Order, like the old one [even in our consolidated version] is not easy to understand without careful reading. One example illustrates the point. The Order starts in section 4 by listing establishments that are closed during the national lock-down: restaurants for instance must be closed except for mobile food deliveries and takeaways [section 4(1)(b)]. Much later, in section 23, we find that actually restaurants can be open for sit-in meals as well, during licensed hours, so long as they operate at half capacity and sanitise their premises and furniture every day. Even that does not tell us the full story because, if we go on to section 25, we discover that whatever their licensed hours may be, restaurants must close down at 8 p.m. to observe the nightly curfew.
Legislation is [unfortunately] often difficult to understand, but it doesn’t have to be that difficult.
No provision for regional or area lock-downs
The new Order has effect throughout Zimbabwe [section 3] and it applies uniformly. There is no provision for lock-downs to be relaxed or re-imposed within specific areas. If there is a sudden spike of Covid-19 cases in Beitbridge, for example, it will not be possible to impose a lock-down there without imposing the same lock-down everywhere else.
The Order should have allowed a more targeted approach. To be more specific, the Order should have specified measures that can be taken under the most stringent lock-down (call it level 1) as well as the measures to be taken under ever-decreasing levels of lock-down ‒ however many levels are needed to meet differing intensities of the pandemic. Then the Order should have had a provision empowering the Minister (or Vice-President) to issue orders imposing different levels of lock-down in different areas to meet the situation in those areas.
Little regard for conditions in rural areas
The new Order also makes little or no distinction between urban and rural areas, beyond stating in section 2 that agricultural activities are an essential service. The perspective of the order is markedly urban, and middle-class at that. For example, everyone is confined to their homes under section 4(1), except that one person at a time can leave in order to buy basic necessities at a supermarket or food store, or for the purpose of outdoor exercise ‒ i.e. cycling, walking or jogging with or without their dogs in public parks or public open spaces. This does not seem very relevant to life in a rural village.
Errors and omissions remain
Errors which we pointed out when reporting on amendments to the old order have not been corrected. For example:
- Informal traders are permitted to carry on business by Part V of the new Order, but “cottage industry operators” are not. There is no indication of who these cottage industry operators are.
- More importantly, most businesses in the formal and informal sectors are permitted to open in terms of Part V of the Order, but customers are prohibited by section 4 from leaving home to do business with them.
- Intercity passenger transport remains severely restricted by section 4(1)(d) of the order, but it is not clear what is meant by “intercity”. If the word is taken literally, section 4(1)(d) would restrict traffic between, say, Harare and Marondera (both of which are cities) but not between Marondera and Rusape ‒ a much longer journey.
There is one intriguing new error. Under section 23(2)(c), haunting safari operators can now open for business. Book a tour at your local undertaker!
Finally, and much more seriously, there are important constitutional issues that should have been resolved in the new Order.
Most pressing is the issue of democracy. Sections 58 and 59 of the Constitution guarantee freedoms of assembly and association and the freedom to demonstrate. All these freedoms are vital to democracy because they allow political opinions to be disseminated and discussed. They should not be taken away except in dire emergency: as section 86(2) of the Constitution puts it, they should not be limited except to the extent that the limitation is
“fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”.
Ever since the lock-down was first imposed at the end of March, the Police have used it to justify suppressing all demonstrations and public gatherings of a political nature, even when the participants wore face masks and observed social distancing. This is not fair, reasonable or justifiable, and it is certainly not necessary, in order to combat the spread of Covid-19. The Lock-down Order has been interpreted as authorising the suppression of democratic freedoms, but democracy cannot be sacrificed to public health.
Part of the problem is that neither the old nor the new Lock-down Order mentions political gatherings and demonstrations so there is no guidance on what political activities may take place and how they are to be conducted. The new Order should be amended to make it clear that they can take place so long as participants observe social distancing, wear face masks and take reasonable precautions to protect themselves and others from Covid-19.
There are further constitutional issues that need to be attended to. The blanket ban on inter-city passenger transport imposed by section 4(1)(f) of the new Order infringes freedom of movement, probably to a greater extent than is necessary to deal with Covid-19. In any event, it does not chime in with the opening of tourist resorts, most of which cannot be reached by road except by travelling through cities and towns. The curfew imposed by section 25 of the new order is also constitutionally questionable: it seems to infringe freedom of movement more than is necessary to stop the spread of Covid-19. And section 22 of the order, which threatens with prosecution anyone who publishes false news about public officers involved in enforcing the national lock-down, is likely to have a chilling effect on freedom of expression guaranteed by section 61 of the Constitution. These issues, if not corrected by amendments to the Order, will have to be resolved by the courts.
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