Relaxation of Lock-down: Bill Watch 66/2021

Since our last Bill Watch on the subject [Bill Watch 62/2021 of the 26th August] there have been two statutory instruments – SI 228B/2021 and SI 234/2021 – relaxing the COVID lock-down from level 4 to level 2. A consolidated version of the Lock-down Order, incorporating the amendments made by the two SIs, can be accessed on the Veritas website. In this Bill Watch we shall explain the contents of the two SIs.

Curfew

Curfew remains in force, but is now from 10 p.m. to 5:30 a.m. the next morning.

Opening of businesses

Opening hours for businesses generally are from 8 a.m. to 7 p.m. daily. However for some businesses the hours are different:

• Bottle stores may open only from 10 a.m. to 4 p.m. Drinking is not allowed on the premises, and customers must wear face masks, observe social distancing and have their hands sanitised. Enforcement officers (police officers and health officials) must be allowed access to the premises to ensure these measures are complied with.
• Restaurants, including restaurants attached to hotels, may open between 8 a.m. and 10 p.m., and may serve sit-in customers if they prove they have been fully vaccinated (i.e. have received two shots of a vaccine). Customers who cannot prove this may nevertheless be admitted if they can show they have tested negative for COVID-19 within the preceding 48 hours.
• Bars attached to hotels, restaurants and lodges may open from 8 a.m. until 10 p.m.

Other bars, drinking places, night clubs and beer-halls must remain closed.

Although the new amendments specify the wearing of face masks and social distancing only in relation to customers at bottle stores, customers at restaurants and bars must do the same (when not eating and drinking) in terms of sections 19B and 19C of the Lock-down Order.

Gatherings

General rule for gatherings

Up to 100 people are now permitted to gather in public places for the purpose of getting public transport and attending funerals and public hearings conducted by parliamentary committees. Everyone at the gatherings must wear face masks, observe social distancing and have their hands sanitised. Convenors of gatherings must refuse admission to people who have not been fully vaccinated, but may admit those who can show they have tested negative for COVID-19 within the preceding 48 hours.

Church services

People can now attend religious services in churches and other places of worship, but the number of people who can attend is limited to half the holding capacity of the church or place of worship concerned. Worshippers have to wear face masks, observe social distancing and submit to having their temperatures taken and their hands sanitised; in addition, the places of worship must be disinfected in accordance with Ministry of Health guidelines. As is the case with all other gatherings, worshippers have to show that they have been fully vaccinated before they can be allowed into a church or other place of worship, though they can be allowed in if they show they have tested negative for COVID-19 in the preceding 48 hours.

Is the vaccination requirement lawful? A judge of the High Court has issued a provisional order to the effect that it is unconstitutional to require worshippers to be vaccinated before they congregate for public worship. The judge’s reasons have not been published so we will have to wait for the court’s final judgment, given after hearing the parties, before we get an authoritative answer.

Comment: If Veritas may be permitted to rush in where angels fear to tread, we think the requirement may be constitutional. The Constitution protects everyone’s right to practise their religion (section 60(1)(b)) as well as their right to assemble and associate with others (section 58). If people’s right to assemble and associate can be restricted in order to prevent infection during a pandemic – and surely it can be – it is difficult to see why their right to assemble in order to worship cannot be similarly restricted. So long as the restrictions are fair, reasonable, necessary and justifiable in a democratic society – and particularly so long as they are proportionate to the harm they seek to avert – then they pass constitutional muster. Arguably therefore it is constitutional to require worshippers to be vaccinated before they join others in church. On the other hand, there is also an argument for the opposite view, based on the fact that the restrictions have been imposed by statutory instruments made by a Minister rather than directly by an Act passed by Parliament. The statutory instruments make such drastic inroads into fundamental freedoms of assembly and expression that they may fall foul of section 134 of the Constitution, which states that Parliament cannot delegate its primary law-making power to a Minister or other authority.

Workshops and business meetings

Businesses that provide an essential service can hold workshops and meetings and can work with full staff complements. For other businesses, however:

• Only virtual workshops and meetings can be held, though enforcement officers can authorise face to face meetings
• Offices must be decongested, e.g. by rotating staff, so that no more than half the staff are present together at any one time in the offices.

It is not clear if these provisions apply to non-governmental organisations which do not operate to make a profit and so are not strictly “businesses” – indeed, it is not clear if such NGOs are allowed to open at all under the Lock-down Order

Theatres and cinemas

Theatres and cinemas can open from 8 a.m. until 7 p.m. (Inappropriate hours, surely, for establishments which offer evening entertainment?) Their employees and customers must be fully vaccinated, though if they can show that they have tested negative for COVID-19 in the past 48 hours they can be allowed in.

Intercity Transport

Intercity transport (i.e. public transport between different urban areas) is allowed, but:

• It is restricted to vehicles operated by ZUPCO, those used for transporting State employees, and those used by local authorities for essential services.
• Vehicles must be disinfected at least twice daily.
• Passengers must have their temperatures checked and their hands sanitised before boarding, and must wear face masks.
• Drivers must be tested for COVID-19 at least once a month.

Private vehicles are not subject to these restrictions.

Sports

All sporting activities – low-risk, medium-risk and high-risk – can take place between 8 a.m. and 8 p.m. but are open only to sportspeople who have been vaccinated, though once again sportspersons who can show they have tested negative within the preceding 48 hours can participate. Gyms, health spas and fitness centres can open from 8 a.m. to 7 p.m. but their employees must be fully vaccinated and so must their customers (though subject to the exception mentioned in the previous paragraph about customers who have tested negative).

Travellers

Travellers entering Zimbabwe do not have to undergo quarantine if:

• They are asymptomatic, i.e. they do not exhibit symptoms of COVID-19, and
• They have a certificate to show they tested negative for COVID-19 within 48 hours before they departed for Zimbabwe.

Declaration of COVID Hotspots

Under a new section 26E, the Minister of Health and Child Welfare (i.e. the Vice-President) is given power to make “COVID-19 infection hotspot orders” which will be effective immediately he makes them and may impose restrictions on gatherings and activities which are the same as those previously imposed in Hurungwe, Kariba, Kwekwe and Makonde districts. These restrictions were, briefly:

• Imposition of curfews
• Requiring people to wear face masks, submit to sanitisation and observe social distancing in public places
• Prohibiting meetings and gatherings
• Restricting gatherings to people who have been fully vaccinated – though unvaccinated people will have to be permitted to join if they can prove they have tested negative within 48 hours
• Limiting opening hours for businesses and closing some businesses altogether, e.g. bars, beer-halls and nightclubs
• Prohibiting restaurants and eating-places from serving sit-in customers
• Limiting the number of passengers that may be carried in public transport vehicles
• Prohibiting vehicles from stopping, except at designated places
• Introducing contact tracing.

Hotspot orders will be made and published in whatever way the Minister thinks appropriate (though presumably they will have to be in writing) and will remain in force for 14 days with a possibility of being renewed once. The new section does not state that people who contravene hotspot orders are guilty of an offence.

Is this new section 26E valid?

Almost certainly not, because neither the Public Health Act nor the Public Health (COVID-19 Prevention and Containment) Regulations (SI 77/2020), under which the Lock-down Order was made, authorise the Vice-President or the Minister to impose restrictions by written order. Section 68 of the Act empowers the Minister to make regulations to deal with formidable epidemic diseases such as COVID-19, and section 8 of SI 77/2020 empowers him to publish orders in the Gazette (i.e. to make statutory instruments) for the same purpose. It is a well established rule that if an Act gives a Minister power to do something by regulation or other statutory instrument, the Minister cannot do it administratively or verbally or by written orders or directives: it must be done by statutory instrument. According to that rule, section 26E must be regarded as ultra vires and therefore invalid.

Civil servants required to be vaccinated

All members of the Public Service must get themselves vaccinated before the 15th October. If they don’t they will be barred from their workplaces and will not be paid; if they refuse to get vaccinated they will be liable to disciplinary action. Those who have a reasonable excuse for not meeting the October deadline can be given further time, up to the end of the year, to get vaccinated.

Note that this does not apply to members of the Defence Forces or of the Police and Prison Services. They apparently remain free to spread COVID-19 amongst themselves and the rest of the population.

Is this constitutional? It probably is. Although section 52 of the Constitution protects the right to bodily integrity – which covers the right not to be jabbed with needles – that right can be limited by a law that is fair, reasonable, necessary and justifiable in a democratic society, as we mentioned above in relation to the vaccination of worshippers. Governments in democratic countries elsewhere, most recently the government of the United States, have required their employees to be vaccinated, and there is no reason why our government should not do likewise. All the same, it seems perverse to leave the uniformed forces out.

Court Cases

Criminal cases: remands and bail

A new section 26F inserted in the Order states that “for the duration of the national lockdown” bail proceedings and remands (i.e. postponements) of criminal cases will be held virtually by means of closed circuit television or similar electronic media. This however is subject to the following conditions:

• Virtual hearings will be held only if facilities for holding them are readily available or obtainable. If they are not then presumably the hearings will have to be held in open court.
• The new procedure does not apply to initial remands, when accused persons are brought to court for the first time to decide whether their cases should be proceeded with. Initial remands will be held in open court, as before.
• In virtual hearings, prosecutors and accused persons will have to be able to question witnesses and observe their reactions to the questions.

Is the new section 26F valid? It probably is. Although section 69 of the Constitution gives all accused persons the right to a “public trial”, the proceedings to which section 26F applies are not trial proceedings: they precede a trial. The new section is intended to protect public health during a pandemic, and the measures it imposes seem to be proportionate – the right of accused persons to “face their accusers” (i.e. to question the witnesses against them face to face) is preserved.

Civil cases and other criminal proceedings

Civil cases and criminal proceedings, other than those mentioned above, continue to be held in accordance with Practice Direction 9 of 2021, which we discussed under the heading Courts in Bill Watch 62/2021 of the 26th August 2021. This means that all courts proceed as normal but members of the public are not allowed into courtrooms unless they have business there whether as witnesses, litigants, lawyers or journalists.

General comments

We have said before – ad nauseam, it seems – that the Lock-down Order should be simplified and re-enacted. After 35 amendments it has become impossible to understand – even for the drafters apparently, because they did not attempt to integrate most of the new measures into the existing provisions of the Order but instead enacted them as independent provisions. A law that cannot be understood is a bad law, if it is a law at all, and the government should not allow it to remain on the statute book. Until it is replaced, the general public will become more and more confused about what they are and are not allowed to do; as it is, numerous different interpretations of the Lock-down Order are circulating on social media – many of them wrong – and there is no clear, reliable and authoritative text against which to check those interpretations.

A further point we have made before is that Parliament should be involved in formulating laws such as the Lock-down Order. Section 134 of the Constitution, as we have said, prohibits Parliament from delegating its primary law-making power. This means that while an Act of Parliament can confer power on Ministers and other authorities to fill in details in legislation – fixing fees, prescribing forms and so on – Parliament must not give Ministers overarching, over-extensive powers, and statutory instruments must not “infringe or limit any of the rights and freedoms set out in the Declaration of Rights” (section 134(b). The Lock-down Order certainly does limit those rights, and for that reason alone its provisions may be unconstitutional, and not just the provisions relating to vaccination of worshippers which we dealt with earlier.

When the Lock-down Order is re-enacted it should be made an Act of Parliament which can be repealed once the Covid epidemic has passed.

Source: Veritas