Public Health Lock-down Order : Further Changes, Legal and Non-legal
Since our last bulletin on the Public Health Lockdown Order [Bill Watch 21/2021 of the 1st April 2021] there have been further developments on the Covid front.
Firstly the Lock-down Order has been amended again. SI 119/2021 was apparently published in a Gazette Extraordinary on the 14th May but was not issued to the public until after the Minister of Information mentioned it in a post-Cabinet briefing on the 18th May.
Secondly and more ominously, the Indian variant of the Covid virus has been identified in Kwekwe and a two-week lock-down and curfew have been ordered extra-legally in the town and surrounding areas.
SI 119 of 2021
The SI is a short one and the amendments it makes can be explained briefly.
Under a new section 19C(4) inserted in the Order, licensed restaurants are now allowed to serve alcohol to their customers during the hours they are open. This means that restaurants which hold a liquor licence are allowed to serve their customers alcoholic drinks with their meals every evening until 9 p.m. when they have to close.
Quarantining of visitors and tourists
Under a new section 26C visitors and tourists to Zimbabwe, other than returning citizens and residents, will have to produce certificates proving they have been tested and shown negative for COVID-19 no earlier than 48 hours before they departed for Zimbabwe. They will be denied entry if they cannot produce such a certificate. If they can produce one, they will have to “self-quarantine or in a hotel at his or her own expense for a period of ten days from date of arrival in Zimbabwe”.
Comment: It is not clear what this means; perhaps the word “or” was inserted by mistake.
Quarantining of returning citizens and residents
For citizens and residents who return to Zimbabwe the position remains the same as it was. Those who cannot produce a certificate showing they were tested and shown negative for COVID-19 within 48 hours of departing for Zimbabwe will be allowed into the country but will be quarantined for 10 days at their own expense in a hotel or other place designated as a place of quarantine. If they can produce a certificate they have to self-quarantine at home for 10 days.
On the 21st May the Vice-President announced that cases of the Indian variant of the Covid virus had been detected in Kwekwe and accordingly the Government was imposing a two-week lock-down in Kwekwe District. According to his announcement, the measures include:
- A local lockdown of Kwekwe district for two weeks effective from the 21st May,
- A curfew from 7 p.m. to 6 a.m.
- Business hours cut to 8 a.m. to 5 p.m.
- Visitors banned from boarding schools and day schools required to observe strict Covid-19 school protocols
- Closing of all bars, drinking places, beer-halls and bottle stores
- Banning of all gatherings such as weddings, church services and all other public and private groupings
- Funerals restricted to not more than 30 people and required to be supervised by health personnel.
Illegality of measures
These measures are no doubt wise, careful and even necessary but they are illegal because they have not been imposed in terms of any law.
Section 8 of the Public Health (COVID-19 Prevention and Containment) Regulations, 2020 (SI 77/2020) gives the Minister of Health power to impose lock-downs and curfews and to restrict or prohibit gatherings, to take all the measures in fact that the Vice-President has taken in relation to Kwekwe. But he must do so “in consultation with the President” and “by orders published in the Gazette”. No doubt the President was consulted about the measures – he has a particular interest in that part of the world, but no orders have been published in the Gazette, and until appropriate orders are published the measures are illegal.
It is important to make this point because lock-downs and curfews and the banning of public gatherings severely restrict people’s rights and liberties, and the closing of businesses adversely affects people’s livelihoods. To impose them without going through the necessary legal steps, publication of one or more orders in the Gazette, is a serious violation of the rule of law.
The point is not an academic one. If the measures are to be effective they will have to be enforced by the police and perhaps by the army as well. Presumably the police are already enforcing them by arresting violators. If so those arrests are unlawful and the people who have been arrested will be entitled to compensation from the police. Shopkeepers who have been compelled to close their shops will also be entitled to compensation.
It is to be hoped that an appropriate order will be published in the Gazette as soon as possible before too much legal damage is done in Kwekwe.