In Part 1 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?
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 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 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, 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 and 83, 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.
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:
1. The measures must be enforced by officials who are legally empowered to do so
Section 2 of SI 77 of 2020 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 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.
2. 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.
3. 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.
*Correction: Members of the Defence Forces are “enforcement officers” for the purposes of the Public Health (Covid-19 Prevention, Containment and Treatment) Regulations. The definition of “enforcement officer” was amended by SI 82 of 2020 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]