Further Relaxation of National Lock-down – Bill Watch 23 / 2020

Source: 4 May 2020Democracy, Health, Legislation

The original lock-down from the 30th March to the 19th April was extended by two weeks and was due to end on Sunday 3rd May [see Bill Watch 17/2020 of 20th April].

On the 1st May the President announced that the national lock-down would be extended for another two weeks until the 17th May but would be relaxed to “level 2” ‒ though he gave no clear indication of what “level 2” is or how it differs from any of the other levels.

The next day the Minister of Health and Child Care published two statutory instruments in the Gazette, one of which extends the period over which special measures can be taken against Covid-19, while the other gives legal effect to the lock-down extension announced by the President and clarifies the extent of the relaxation. The Government is to be commended for publishing them the day before the lockdown was due to end.

The two instruments are:

  • SI 98 of 2020 the Public Health (COVID-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No. 2) and
  • SI 99 of 2020 the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 5).

Also on the Veritas website are consolidated versions of the Public Health Covid-19 regulations and the Lock-down Order, incorporating all amendments to date.

In this Bill Watch we shall explain the two new SIs and their effect on the lock-down.

Extension of Covid-19 Special Measures

SI 98 of 2020 extends the declaration of Covid-19 as a formidable epidemic disease [FED] until the 1st January, 2021. This means that the Minister of Health and Child Welfare will continue to have power until that date to make regulations under section 68 of the Public Health Act dealing with Covid-19. As we explained in Bill Watch 14/2020 of the 14th April, his regulations can be very drastic indeed, providing not just for lock-downs but also for the detention and isolation of patients and the destruction of buildings.

SI 99 of 2020 extends the lock-down until the 17th May, which means that unless further extended it will end at midnight on Sunday the 17th. The SI inserts a new Part into the Lock-down Order which relaxes it somewhat by allowing certain classes of businesses to re-open and people to leave their homes.

Relaxation of Lock-down

Who or what can re-open?

The previous relaxation allowed tobacco auction floors and mines to resume operations, subject to restrictions outlined in Bill Watch 17/2020 of the 20th April. They can continue to operate subject to the same restrictions, but now all “businesses in the formal commercial and industrial sector” will also be allowed to re-open, though subject to different restrictions that will be outlined later in this Bulletin.

What is a business in the formal commercial and industrial sector?

It is defined to mean any business, industry, trade or occupation dealing in goods or services for profit or for the generation of income. It must be formalised, i.e. it must:

  • operate from premises specified in a shop licence or similar licence issued by a local authority, or
  • be a tenant in recognised commercial premises, or
  • be registered as a business or employer under the Value Added Tax Act or the Income Tax Act, or
  • be a party to a collective bargaining agreement under the Labour Act (such agreements cover only employers and employees in the formal sector).

What is not a business in the formal commercial and industrial sector?

The following businesses and activities are not covered by the definition, so they cannot re-open:

  • restaurants, tourist facilities, guest houses, clubs, sports facilities, places of worship (e.g. churches, temples, mosques and shrines), flea markets, liquor stores, theatres, cinemas and shopping malls
  • non-profit organisations such as charities and most NGOs
  • informal businesses like those carried on by vendors and cross-border traders.

Establishments providing essential services ‒ pharmacies, doctors’ surgeries, banks, supermarkets, garages, etc. ‒ are also not covered by the definition, but they have always been allowed to remain open so they can carry on as before.

Who can leave their homes under the relaxed lock-down?

Anyone who operates or is employed in a business in the formal commercial and industrial sector is regarded as being employed in an essential service and so can leave home for the purpose of the business.

Note, however, that there is nothing in the new rules that allows customers or clients of businesses in the formal commercial and industrial sector to leave their homes, so although the businesses can open no one can do business with them. This anomaly should be addressed as soon as possible. This is because in section of original lockdown order people are allowed to leave their homes only for limited purposes such as buying essential food and medicines – but not for going to ordinary shops or other businesses.

Restrictions on Re-opening of Businesses and Movement

There are several restrictions and conditions imposed on the re-opening of a business in the formal commercial and industrial sector:

  • Before resuming operations, everyone who operates or is employed in the business “must at the direction of an enforcement officer [i.e. a police officer, a government or local authority medical officer or security force member] submit to screening and testing for the Covid-19 disease”, and employers must arrange with an enforcement officer where and when the tests are to take place.

It is not clear whether this means that a business cannot re-open until everyone has been tested, or that testing must take place only if an enforcement officer so directs. This should be clarified by an amendment to the legislation.

  • Businesses must not open before 8 a.m. and must not stay open after 3 p.m.
  • Everyone who operates or is employed in the business must, if so directed by an enforcement officer:
    • submit to screening and testing for Covid-19,
    • at all times observe social distancing at their workplace (i.e. keep at least one metre apart), wear protective masks and have sanitising liquid available.

Note: They have to do this only if they are directed to do so by an enforcement officer ‒ another anomaly that should be corrected.

Face masks

There is a further restriction on the re-opening of the lockdown that applies not just to people connected with a business in the formal commercial and industrial sector, but to everyone who leaves home. While they are in a public place they must wear face masks, either manufactured or improvised.

Do they have to wear a mask while driving or travelling in a motor vehicle on a public road? That is a difficult question which the courts will probably have to decide in the near future. It has however been drawn to our attention that police are arresting people driving without masks. It is not clear under what circumstances this is happening.

Face masks must also be worn by everyone who gathers for the purpose of an essential service, for example patients waiting for treatment at a hospital or clinic must now wear face masks in addition to observing the social distancing rule.

Gatherings

Hitherto under the Lock-down order gatherings of more than two people in public places were prohibited except in limited circumstances. Now gatherings of up to fifty people are permitted, provided they wear face masks and observe the social distancing rule. This does not however mean that people can forgather at places such as churches, sports grounds or flea markets because those places remain closed for the duration of the lock-down.

Transport Services

Passenger transport services continue to be restricted to those provided by ZUPCO or local authorities or operated for the carriage of State employees.

All vehicles that provide transport services ‒ including those used for goods rather than passengers ‒ must now be disinfected at least twice daily and their crews must be temperature-tested and have their hands sanitised before they board the vehicles. Everyone, passengers and crew, must observe the social distancing rule.

Opening of Airports

Section 7 of the Lock-down Order declared that airports and aerodromes throughout the country, except the international ones at Harare, Bulawayo and Victoria Falls, would be closed from the 30th March to the 3rd May. That period has not been extended, so presumably all airports and aerodromes are now open. This may however be just an oversight that needs correction.

Conclusion

As we have pointed out in this Bill Watch, some issues remain unclear in the two new statutory instruments. It is to be hoped that they will be clarified in the near future and that the clarifications will be done legally ‒ that is to say, by amendments to the instruments rather than by a Ministerial statement that has no legal validity.

One further point should be made. The Public Health regulations and orders are not easy to understand and they have been amended quite extensively in the short time they have been in operation. Most members of the public, we imagine, are not aware of their provisions. Nearly 20 000 people have been arrested for violating the lock-down, and the number is rising every day. This rather shocking statistic may be attributable at least partly to public ignorance about the lock-down rules. If so, perhaps the Government and civil society organisations should make a more vigorous effort to inform the public in clear and simple terms what they are and are not allowed to do. It might help reduce the violations and save at least some members of the public from being arrested and thrown into crowded police cells where they run a serious risk of infection with Covid-19.

Source: Veritas