ICJ Kenya
By Richard Ncube

Corona virus which is popularly known as COVID 19 has taken a terrible grip of the world- it is described as an invisible enemy. [1] What started as a pneumonic respiratory disease in the Wuhan District of the People`s Republic of China has turned into a cataclysm of unprecedented levels in the history of the world.[2] The disease has spread to virtually every corner of the globe with devastating consequences. [3] Many people in the world have lost their lives and thousands are in hospitals and care centres with or without hope of staying alive. Countries have taken stringent and radical measures to curb and protect citizens against this disease lest humankind can be wiped away. Zimbabwe is not spared by this deadly disease.

On the 27^th of March 2020 the President of Zimbabwe declared a 21 days lockdown as a measure to mitigate and minimize the spread of coronavirus. This was followed by the promulgation of a law meant to regulate and manage the state of affairs during this state of emergency.[4] The enforcement of the regulations and the laws put in place has implications on the rights that are provided for in the Constitution of Zimbabwe. The laws obviously limit the rights that are provided for in the Constitution. This article seeks to advance the point that where there is limitation of rights such limitation must adhere to principles of legality, proportionality and necessity.

Context

The decision by the government of Zimbabwe to combat Covid 19 was followed by a raft of laws and regulations. The law put in place set out restrictions that limits the rights that are provided for in the Constitution of Zimbabwe. The law punishes the publication of false or fake news during the national lockdown and this offence attracts an excessive punishment of 20 years of imprisonment[5]. The President has indicated on national television that the person who posted on social media that the President has postponed the lockdown will be punished. Public gatherings of more than two people are prohibited  except at a stopping point and such gathering shall not exceed 50 people and they should adhere to the principles of social distancing.

[6]The Minister of home affairs was given powers to impose closure of ports of entry and exit into Zimbabwe subject to exceptions such as allowing the transportation of essential services and as well allowing returning citizens. The essence of the law is that for a period of 21 days the citizens of Zimbabwe both poor and rich, young and old had to stay indoors except those  that are entitled at law to do business. The police office officers with the help of security officers were unleashed into the streets to enforce the law and ensure that people are complying with the law.

It is quite apparent that the Covid laws in Zimbabwe has implications of a number of human rights that are provided for in the Constitution. These rights include the right to assembly, right to movement the right to access information and other rights in the Constitution. In some parts of the country there have been allegations of abuse of the powers vested in the police officers during this lockdown through demanding bribes and assaulting the public. In Zimbabwe the High court has actually ordered the police to stop beating people and subjecting theme to inhuman and degrading treatment. This therefore shows that the law enforcement agencies are taking advantage of the prevailing situation to violate people rights.

The Constitution of Zimbabwe provides for limitation of rights by a law of general application.[7] More particularly the law provides that rights can be limited during times of disaster or emergencies such as what the world is grappling with.[8] This goes to show that most human rights contained in our Constitution are not absolute but are subject to reasonable restrictions. The same applies to the treaties and conventions that are provided for at the International law level.

There are general three conditions that justify limitations of rights that is the limitation must be subject of a general law application, must serve a legitimate aim and proportionality. These principles are generally accepted at international law and should be used to ensure that whatever limitation that is imposed is justified,  If these principles are taken into consideration a balance can be attained between the enjoyment of rights and enforcement of lockdown laws in Zimbabwe.

Recommendations

Given the fact that the is no vaccine or cure to Covid 19 and most likely the law enforcement agencies are going to be critical for the fight to combat Covid. It is therefore important to take note of the following

1. The law enforcement agencies should act within the confines of what is provided within the law in enforcing the Covid laws and should desist from abuse of powers.
2. All law enforcement agencies who abuse their powers during this time should be investigated and prosecuted for such offences.
3. All the measures that are going to be put in place during this period should be sanctioned by law and the state should desist from being a law unto itself all in the name of combating Covid 19..
4. The Government should consider all the necessary factors and circumstances before imposing measures so as to avoid unnecessary limitation of rights.
5. Any limitation of rights should save a legitimate aim and the state should not use this peris to solve other challenges which have no bearing on fighting Covid 19.
6. Measures imposed should be proportionate to the mischief that is being addressed.

END

Richard Ncube is a public interest human rights lawyer based in Zimbabwe. He is currently working for Zimbabwe Environmental Law Association an organization that is at the frontlines of environmental justice in Zimbabwe. He is responsible for litigation at the inferior, superior and the Apex court of Zimbabwe for the organization. Richard is an avid legal researcher

Contact details : Richard Ncube +263 778760285 richard@zela,org  richync26@gmail.com

[1] Exparte Willem Van Heerden 1079/2020 where the Applicant filed a court application after the South African President imposed a 21 day lockdown on South Africa. The Applicant wanted to be allowed to travel to another province in order to attend a funeral. The court noted that it can authorize the Applicant to break the law under judicial decree. To that end the Application was dismissed.

[2] Roger Dean Stringer vs Minister of Health and Child Care and Sakunda Holdings HH 259/20

[3] Ibid

[4] Public Health(Covid -19 Prevention, Containment and(National lockdown) Order 2020

[5] Section 14 of S.I. 83 of 2020

[6] Section 5 of S.1. 83 of 2020T

[7] Section 86 of the Constitution

[8] Section 87 of the Constitution