Executive Disorder, Constitutionalism and COVID-19 in Zambia

Felicity Kayumba Kalunga
LLB, LLM
Lecturer, Department of Law,
University of Zambia

Introduction

Zambia reported its first two COVID-19 positive cases on 18th March 2020. At the time of writing, the country had recorded a total 89 of positive cases, with three deaths and 42 recoveries. The pandemic has not spread across the country, with all the cases so far recorded coming from only three out of the country’s 10 provinces. The Zambian government has not declared COVID-19 an emergency pursuant to the constitutional provisions. It has instead proceeded by issuing two statutory instruments (SI), under the Public Health Act, which were published in the Government Gazette on 13th March 2020. This notwithstanding, government has implemented measures and presidential directives which have no backing of the law and are contrary to constitutional provisions on the protection of fundamental rights, as shown below.

Zambia’s Constitutional and Legal Framework on Public Health emergencies

Zambia has a written Constitution that asserts supremacy over other laws and binds all persons and State institutions. The Constitution contains a justiciable Bill of Rights, which protects civil and political rights, but not economic, social, and cultural rights. A person who claims that their rights under the constitution are threatened or violated may petition the High Court for redress pursuant to Article 28 of the Constitution. This provision also mandates Subordinate Courts to refer any question that relates to contravention of the Bill of Rights, to the High Court for its determination.

Except for non-derogable rights such as the right to protection from torture, inhuman and degrading punishment or treatment, the Constitution authorises the limitation of fundamental rights of an individual through provisions of a written law that, among other reasons, is “reasonably required in the interests of public health” and is shown to be “reasonably justifiable in a democratic society.”

The measures adopted to manage the COVID-19 pandemic are based on the provisions of the Public Health Act, which regulates all matters related to public health in Zambia. The Act also empowers the Minister of Health to make regulations for containing contagious diseases not provided for in the Act. The Minister of Health has, pursuant to the Public Health Act, issued two Statutory Instruments, No. 21 and 22 of 2020, to respond to the COVID-19 pandemic. SI No. 21 declared the Coronavirus Disease 2019 a notifiable infectious disease under section 9 of the Public Health Act, which mandates people to notify relevant authorities whenever a person is suffering from such a disease. SI No. 22 outlines measures aimed at containing the spread of COVID-19. A clear example of the measures set out in the SI is the restriction on the free movement of people suffering from, or suspected to be suffering from, or who have been in contact with a quarantined person suffering from, COVID-19.

All the measures contained in SI No. 22 of 2020 can only be invoked when the urgency level has reached “alert level” described in schedule to the SI as “conveying the highest level of importance and warranting immediate action or attention.” The Statutory Instrument also creates a general offence of failure to comply with the “direction, prohibition or restriction of an authorised officer or otherwise (contravening the) regulations” of the SI. A person convicted for this offence is liable, upon conviction, to pay a fine not exceeding 2,500 penalty units (K750.00) or to imprisonment for a maximum period of six months or to both a fine and imprisonment.

Emergency powers under the Constitution

Zambia’s constitution provides that the Bill of Rights can be suspended in times of war or when a state of emergency is declared. Article 30 empowers the President to, in consultation with Cabinet, declare that a public emergence exists by publishing a proclamation in the Government Gazette. This proclamation is only valid “for a period of seven days commencing with the day on which the declaration is made unless, before the expiration of such period, it has been approved by a resolution of the National Assembly supported by a majority of all the members thereof not counting the Speaker.” After approval by Parliament, the emergency period expires after three months including the day of such approval unless it is revoked on an earlier date or extended by a resolution of majority of Parliament for “further periods of not more than three months at a time.” The Zambian government has not invoked the emergency provisions. It has solely relied on the measures set out in SI No. 22 of 2020, to address the COVID-19 pandemic.

Limitation of Rights under COVID-19 regulations

Notwithstanding the fact that the government has not invoked the emergency provisions of the Constitution, government has proceeded to issue directives aimed at containing the spread of COVID-19 that have the effect of limiting fundamental rights. Among these measures, announced by the Minister of Health and the President , include the following:

1. Indefinite closure of all learning institutions with effect from 20th March 2020;
2. Restriction of public gatherings to no more than 50 people subject to strict compliance with public health authority guidelines;
3. Closure of bars, gyms, and restriction of operation of restaurants to take away basis;
4. Restriction of movement in and out of Kafue district on 15th April 2020 to facilitate massive testing for COVID-19 following an incidence that involved the discovery of one person testing positive for COVID-19 post-mortem; and
5. Mandatory wearing of masks in public announced by the President on 9th April 2020.

Apart from the measures for which dates are stated above, all other measures were supposed to be observed during an initial period of 14 days, effective 26th March 2020 but were extended for another fortnight on expiry. The latest presidential address held on 24th April 2020 did not mention a specific period during which the measures would last but merely stated that “modification of control measures will be informed by the evolution of the outbreak.” The president also stated that “failure to adhere to the public health guidelines and certification, will attract penalties including revocation of licences at any given time.” With this, he directed law enforcement agencies “pursue any offenders.”

The government has also announced some economic incentives such as waiver of penalties and interest on outstanding tax liabilities resulting from the impact of COVID-19, suspension of duty on medical supplies, and release of funds to pay retires from the public services their accrued benefits. No research has been conducted to establish whether the economic incentives have been implemented. I will therefore focus this analysis on the measures limiting civil and political rights.

At the outset, it should be noted that the provisions of the Public Health Act and the SI issued under it do not support some of measures announced. More importantly, some measures are excessive and fall below the standard of constitutionalism and accountability for the protection of fundamental rights for the following four reasons.

Firstly, the Public Health Act does not authorise the derogation of fundamental rights, as this would be unconstitutional. The measures under the Public Health Act and regulations issued under it are limited to the specific provisions of the Act and only limit individual rights. Fundamental rights of all people in the country can only be suspended when the country is at war or during an emergency as provided by Articles 25 and 30 of the Constitution. As such, whereas it is lawful to place infected persons under mandatory quarantine for treatment or to prevent the disease from spreading, the regulations cannot, for instance, justify imposition of a mandatory lockdown on all people. In the same vein, the mandatory ban on businesses such as gyms and bars countrywide is potentially unconstitutional. One could argue that the directive is ultra vires the empowering regulation as it only permits prohibition or restriction of trade “in unsanitary conditions” which is an issue of fact and is subject to it passing the constitutional test.

Secondly and related to the first issue, the adopted measures have suspended fundamental rights, as a matter of fact, minus complying with the mandatory constitutional requirements, which control potential abuse of power by the executive. The de facto suspension of rights has gone on for more than 30 days with the last presidential address describing the measures as “the new normal.” This is contrary to constitutional provisions that require that emergency measures last for definite periods, as above stated.

Thirdly, presidential directives are unlawful because the power to make regulations to contain contagious diseases under the Public Health Act is given to the Minister of Health. The only other officers clothed with authority under SI No. 22 of 2020 include “a Medical Officer of Health, Health Inspector, District Medical Officer, Environmental Health Officer, or a suitably qualified person authorised in writing by the Minister (of Health) or a local authority with approval of the Minister” who may give administrative directions and instructions to people under specific provisions of the SI.

Finally, the Public Health Act provides that all measures taken by the Minister of Health for managing infectious diseases should be prescribed by a statutory instrument or notice. As a result, some of the announced measures, such as restrictions on public gatherings or movement, which are only applicable to “infected areas”, cannot be supported by the general provisions of SI No. 22 unless the Minister, by statutory notice, declares the place to which the restrictions apply to be an infected area. This means that the restriction on movements in and out of Kafue on 15th April 2020, and the ban on public gatherings of more than 50 people which is directed at the entire country, are both illegal in the absence of a statutory notice supporting the measures.

Enforcement of Regulations and responses
Notwithstanding the absence of a proper legal framework to facilitate the enforcement of the measures aimed at addressing the COVID-19 pandemic, government officials have proceeded to enforce the presidential directives. The most overzealous enforcer-in-chief has been the Lusaka Province Minister, Bowman Lusambo, who, in the company of Zambia Police officers, has taken to what he described as “successful Stay Home night operations.” These illegal moves typically involve arresting people alleged to be abrogating the presidential directives accompanied with physical beating of suspects with sticks described by the Zambia Police Spokesperson as “Gazetted Whips.” The Police Service has justified the use of these torture instruments on account of limited manpower and that it is reasonable to force permitted under the law.

The Minister of Transport and Communications, Mutotwe Kafwaya, also issued an illegal enforcement order when he banned commuters without facemasks from boarding public buses “because social distancing is difficult in public transport.” Lusambo has also been seen, in a video that was widely circulated, ordering commuters in Lusaka to disembark off buses for not wearing a facemask.

Oversight by Parliament and the Judiciary
The National Assembly has not been able to play its oversight role, as it was one of the first institutions to suspend its operations, having adjourned indefinitely on 18th March 2020 on account of COVID-19. This means that some executive measures that require Parliamentary approval such as a declaration of a state of emergency have been suspended.

The Judiciary has scaled down its operations due to the COVID-19 outbreak by postponing sessions of the Supreme Court, Constitutional Court and Court of Appeal, which were scheduled to commence on 7th, 14th and 21st April 2020, respectively. The High Court has, since 6th April 2020, indefinitely suspended its criminal sessions in various districts and the hearing of all civil matters, except for one judge attending to urgent matters such as injunctions and stay of executions. Criminal proceedings before the Subordinate Courts, which would ordinarily hear allegations under SI No. 22, have continued under precautionary guidelines. Research has yet to establish how many of those arrested on allegations of breaching COVID-19 directives have been prosecuted before the courts.

Conclusion
So far, Zambia’s responses to the COVID-19 pandemic fall short of the required standard for constitutionalism and accountability for the protection of fundamental rights. The “suspension of human rights approach” that has been taken is not only detrimental to democracy but also threatens to undermine the effectiveness of the government’s response to the fight against COVID-19.