BILL WATCH 51/2020
[29th July 2020]
Covid-19 Lock-down Order : Imposition of Curfew
Last week the President announced that stricter lock-down measures would be imposed with effect from the 22nd July. The principal measures he announced were:
- A nightly curfew would be in force throughout the country from 6 p.m. to 6 a.m.
- Businesses, other than those providing essential services, would be allowed to open only from 8 a.m. to 3 p.m. on business days.
- Intercity and inter-town public transport would remain banned, and so would all inessential transport to rural areas.
Subsequently the Minister of Health published two statutory instruments amending the Public Health Lock-down Order to give legal effect to most of the measures announced by the President. The instruments can be accessed on the Veritas website: they are SI 174 of 2020 [link] and SI 186 of 2020 [link]. A consolidated version of the Lock-down Order, incorporating all the amendments, can also be accessed [link].
In this Bill Watch we shall discuss the changes introduced by the latest amendments.
The most important of the changes is the introduction of a nightly curfew throughout the country, in urban and rural areas alike, from 6 p.m. to 6 a.m. During the hours of curfew no one may move outside their homes except persons employed in essential services [see below for what that means] and persons who satisfy an enforcement officer that they have left their homes justifiably to buy medicine, to obtain medical assistance, to get outdoor exercise alone or in pairs [a glaring loophole, surely?], to care for a needy relative or dependant, or for “exceptional or humanitarian grounds”. Foreign diplomats are exempt from the curfew.
The term “essential service”, for the purpose of the curfew, is defined to cover:
- Hospitals [but not clinics]
- Manufacturers and distributors of medical supplies to combat Covid-19 and other medical emergencies
- Road and water passenger transport services, and Ethiopian Airways [but not Air Zimbabwe]
- Services for the supply of water, electricity and sanitation
- The production, supply, delivery and distribution of fuel, coal and food [but not supermarkets and food stores, though it probably includes street vendors selling food]
- Fire brigades and ambulance services
- Communications and telecommunications, including newspapers, journalists and even newspaper vendors
- State and private security services
- Funeral services
- Agricultural activities on farms, and the supply of agricultural inputs
- Designated tobacco auction floors
- The supply and distribution of veterinary requirements
- The work of Parliament [This has been overtaken by events and Parliament has been forced to adjourn]
- Mining operations.
The penalty for breaching the curfew is a fine of up to Z$36 000 or imprisonment for up to a year or both. Anyone found in breach of the curfew is to be told they will be summoned to court and ordered to return to their home immediately; if they refuse, or if they are more than five kilometres from their home (or, if driving, more than 20 kilometres) they may be arrested and placed in detention.
Restricted Hours for Businesses, Sports and Gatherings
All businesses, other than those providing essential services, must open no earlier than 8 a.m. on business days and close no later than 3 p.m.
Similarly, low-risk sports events must take place only between the hours of 8 a.m. and 3 p.m. Low-risk sports are non-contact sports in which it is possible to maintain social distancing. For a sport to be classified as such, it must be specified by the Minister responsible for Sport. The Minister has specified the following sports, so long as they are conducted in accordance with conditions laid down by their relevant sporting bodies and with conditions laid down in section 11G of the Lock-down Order [as to which, see Bill Watch 32/2020 of the 27th May ‒ [link]:
- Equestrian sports
- Polo and polocrosse
Gatherings in public places must likewise take place only between the hours of 8 a.m. and 3 p.m. The only exceptions are:
- Queues for transport (up to 50 people)
- Passengers in a public service vehicle
- People at a hospital, pharmacy or other health service provider
- People providing an essential service.
But, people at all gatherings must wear face masks and observe social distancing.
Precautions to be Taken by Businesses
If an employee of a non-essential business tests positive for Covid-19, the business must be closed and the premises disinfected, and all other employees who may have had contact with the infected employee must be tested for the disease.
In this context non-essential businesses mean all businesses other than those providing an essential service, including supermarkets, food retail stores, fuel outlets restaurants, hunting safari operators and professional hunters.
Seizure of public transport vehicles
The amendments add a new section 18 to the Lock-down Order which empowers enforcement officers ‒ i.e. police officers, municipal police officers, Defence Force personnel and medical officers employed by the Government and local authorities ‒ to seize vehicles used in connection with an offence against the Order. The power is not unlimited, however. Before a vehicle can be seized:
- The vehicle must have been used previously to commit an offence against the Order
- The driver or owner must have been warned or charged for that previous offence
- The vehicle can only be seized “as an exhibit in connection with the prosecution of such owner or driver for such offence”, and
- The seizure must be in accordance with the relevant provisions of the Criminal Procedure and Evidence Act [CP&E Act].
The new section is completely misconceived. In the first place, police officers have ample powers under the CP&E Act to seize articles, including vehicles, as evidence in criminal prosecutions. The new section gives them nothing new. Secondly, a vehicle can be seized only if it has been used to commit a previous offence against the Lock-down Order. How will police officers at a roadblock know that? They can only guess, and if they guess wrongly the seizure will be illegal. Thirdly, the vehicle can only be seized if it is to be used as evidence in a criminal prosecution. In what circumstances could a prosecution for an offence under the Lock-down Order ever be advanced by producing the vehicle as an exhibit in court?
Furthermore, the new section 18 raises questions it does not answer:
- Under the CP&E Act police officers must provide anyone from whom articles have been seized with a full receipt for the articles. Will police and other enforcement officers have to do the same under the new section 18? Probably they will.
- Should the new section be construed as a substitute for the powers of seizure conferred by the CP&E Act? Probably it should, because it applies to a specific situation ‒ the seizure of vehicles used to break the lock-down laws ‒ whereas the provisions of the CP&E Act are more general. This means that police officers will not be able to use their wider powers under the CP&E Act to seize vehicles used in lock-down offences: they will be confined to the narrower powers conferred on them by section 18.
Veritas does not wish to comment on whether a night-time curfew is likely to slow the spread of Covid-19 to any significant extent; that is something for public health experts to predict . What we can say is that the new curfew provisions limit at least two important fundamental human freedoms:
- Freedom of assembly and association, guaranteed by section 58 of the Constitution, and
- Freedom of movement, guaranteed by section 66 of the Constitution.
All the fundamental human rights and freedoms guaranteed by the Constitution are important, but freedom of assembly and association are particularly so because they are essential to the maintenance of democracy. Section 86 of the Constitution allows a law to limit these freedoms, but any limitation must be fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. These are stringent criteria ‒ note in particular that limitations must be “necessary” not just desirable ‒ and if the curfew provisions are challenged in court the Government will have to show that they meet the criteria and that they are a proportionate response to the threat posed by Covid-19.