Susan C Mutambasere
LLB (UZ), LLM (UP)
University of Pretoria
The year 2020 has seen an unprecedented worldwide pandemic which has resulted in the disruption of lives across the globe in the form of the highly infectious virus Covid-19. To date, this virus has claimed the lives of just under 2000 people in Africa with the number rising on a daily basis. While Zimbabwe’s statistics remain relatively low, it has activated measures to curb the further spread of the virus. These measures are in the form of declaring the pandemic a national disaster in terms of the Civil Protection Act. It is important to note at this juncture that Zimbabwe did not declare a state of emergency in terms of the Constitution like several other African states. This contribution analyses the Constitutional implications of these measures, its impact on fundamental rights and freedoms as well as how it has affected the socio-economic lives of the citizens of Zimbabwe. It concludes with recommendations on how the situation could be handled in order to adhere to Zimbabwe’s legal and constitutional obligations as well as the protection of human rights.
Zimbabwe’s Constitutional and legal framework
The Constitution of Zimbabwe provides for the declaration of a state of public emergency in terms of its Section 113. This provision contains the necessary safeguards, whereby a declaration can be made by the President but requires approval by two-thirds of parliament within 14 days in order to remain in effect. In addition, Section 87 of the supreme law read together with the second Schedule provides the circumstances of the limitation of fundamental rights during a state of emergency.
Zimbabwe opted not to declare the state of emergency but instead declared the pandemic a national disaster in terms of Section 27 of the Civil Protection Act. This was done by the gazetting of the Civil Protection (Declaration of State of Disaster: Rural and Urban Areas of Zimbabwe) (COVID-19) Notice. The declaration of a state of disaster allows the President to take extra-ordinary measures to assist the affected population or to contain the effects of the disaster. In the case of COVID 19, the extra-ordinary measure put in place through the relevant ministries include a national lockdown, with the severe curtailment of various freedoms that include freedom of movement, expression, conscience, assembly and association. It also resulted in the closing down of most major commercial and social enterprises, with the exception of the food industry, health, and other deemed essential public services. The Civil Protection Act provides that the state of disaster may be extended, curtailed or terminated by the President through a Statutory Instrument. The statute, however, does not provide adequate parliamentary oversight of this process because the only extent to which the President is obliged to involve parliament is through informing it of the declaration on the first day that it sits after the declaration is made. The measures put in place have the potential to be used to quash any dissent to those in power.
A number of regulations were gazetted to give effect to the measures. The main statutory instrument was gazetted under the auspices of the Public Health Act to declare a national lockdown. This involved the closing down of national ports of entry, except to allow in returning residents and those with resident permits as well as for cargo. The regulations also prohibit public gatherings including religious and social gatherings. Subsequent amendments resulted in the closing down of schools for an indefinite period of time.
Section 86 of the Constitution is instructive in analysing the limitation of the rights in question. It provides that the rights contained in the Bill of rights may only be limited by a law of general application to the extent that the limitation is ‘fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom…’. It should also be noted that in line with international human rights standards, the Constitution recognises that there cannot be derogations on certain rights under any circumstances, and these rights include the right not to be arbitrarily deprived of life, the right to human dignity, the right not to be tortured or subjected to any other form of inhuman and degrading treatment. Constitutionalism dictates that the constitution be a living document that provides external checks for the government that are meant to safeguard the people’s fundamental freedoms.
Limitations and violations of rights
Right to dignity and integrity of the person
There are significant concerns about how the state of disaster laws have been implemented in Zimbabwe. In order to enforce the lockdown laws, the police were deployed to patrol the streets. However, it quickly became clear that the preferred method of enforcing the lockdown was through the use of unnecessary and unproportionate force. Within two days of the announcement of the lockdown, the police had reportedly assaulted ten people in different parts of the country for violating the lockdown rules. Further reports of assaults have been reported with some involving the Zimbabwe National Army. From the period between 31 March and 5 May, 215 cases of assaults were reported, as well as two cases of malicious injury to property. In an urgent case brought before the High Court, the court on 14 April 2020 censured the security forces for their use of excessive force after a woman had been beaten by security dogs while she was cooking over an open fire outside her house. Despite the pronouncements by the High Court, the police have clearly continued harassing and assaulting people with impunity. No known arrests or disciplinary measures have been taken against offending officers.
Right to freedom of expression and to information
When faced with a crisis of the magnitude that the Covid-19 pandemic presents, access to credible, correct information becomes paramount. While disinformation has long existed prior to the pandemic, in the current circumstances it has been proven that it can lead to fatal consequences. It explains therefore why the Covid-19 regulations in Zimbabwe contain a provision for penalties for spreading of false information. What is concerning with this provision is that the conduct that is sanctioned against, is the spreading of false information about a ‘person’, either a public official or private individual involved in the enforcement of lockdown regulations. It does not sanction the spreading of false information about the virus itself which is arguably more detrimental to the containment of the virus. Such an accused person is liable to be prosecuted under the Criminal Code for ‘publishing or communicating false statements prejudicial to the State’. These regulations have already been tested through the arrest of an individual accused of having peddled false information about the President in Whatsapp groups regarding the extension of the lockdown.
It would also follow that journalists would form part of essential services in such a time, in order to provide access to information for the public. However, it has been noted that journalists in the country have been at the receiving end of the brutality and excesses of the police during the lockdown. Reports of up to 12 journalists being attacked by the police during the lockdown while trying to carry out their mandate have received. Media Institute of Southern Africa (MISA) has also expressed concern over threats that have been issued by the Postal and Telecommunications Regulatory Authority of Zimbabwe as well as the Deputy Minister of Information, Media and Broadcasting Services. The statements have veiled threats against social media abuse which have the effect of curtailing citizens’ freedom of expression. It is conceded that given the discussion above on the need to guard against disinformation, however, this is happening in the context of Zimbabwe whose government has a long-standing history of suppression of the right to freedom of expression through repressive legislation. Such safeguards against disinformation should thus be clearly expressed in law, be necessary and serve a legitimate aim in a free and democratic society.
Zimbabwe has long been battling with a crippled economy, the International Monetary Fund as at September 2019 estimated the hyper-inflation at 300%. The implementation of the lockdown regulations has thus worsened the situation in a country where the majority of the population rely on the informal sector for their survival. For example, harrowing images of the police burning fresh produce headed for the informal market were released at the beginning of April. The fact that the President publicly condemned the actions of the police is an indication of the lack of clear parameters issued to the police in their implementation of the lockdown regulations, resulting in the disregard of basic human rights.
Zimbabwe’s policy direction in the handling of the pandemic has drawn inspiration from other countries, in particular, South Africa. However, the challenge is that Zimbabwe’s economy is unable to sustain the kind of measures that a country like South Africa has implemented. Zimbabwe has tried to implement relief for a citizen like the issuing of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020 which effectively block any evictions during the lockdown for defaulting in the payment of rentals or mortgage. While this alleviates to an extent the economic impact of the crisis, there are still more pertinent problems like access to food. There are also challenges with accessing clean potable water which is crucial in the fight against the virus. The country has received aid from different quarters including the World Bank to assist during the pandemic, and use of these funds need to be done in a transparent manner for their intended purpose. There has been evidence that the pandemic is already being used to advance political interests when some of the money was used to print the face of President Mnangagwa on some equipment used in the fight against the pandemic.
The Covid-19 pandemic is a world-wide phenomenon which requires cooperation from all affected countries, but it is not an opportunity to disregard the tenets of constitutionalism and disregard human rights. While the crisis demands urgency of action, it is clear that consultations should be carried out on a continuous basis with the communities in order to tailor-make interventions that are appropriate. There should also be mechanisms in place for accountability in order to safeguard fundamental rights and to act within the law, as well as to prevent corruption especially in the handling of aid. The judiciary should take a more active role in providing oversight in the implementation of the laws.