BILL WATCH 84/2020
[16th December 2020]
Public Health Lock-down Order : A Puzzling Relaxation of Lock-down
In a new SI published yesterday ‒ SI 299A of 2020 [link] ‒ the Minister of Health and Child Care further relaxed the national lock-down. The SI is very short – it has only two clauses – but the amendment it makes may be far-reaching.
The Position Prior to This Amendment
Section 5(1) of the Lock-down Order used to provide that no more than two people could gather in a public place, but this general rule was (and still is) followed by a long list of exceptions: for example, up to 100 people can queue for public transport, up to 100 can attend a funeral or a religious service, and an unstated number of people can gather in a supermarket, food shop or hospital. [Although unstated, the number is in fact limited to 100 because the Public Health (COVID-19 Prevention, Containment and Treatment) Regulations prohibit all public gatherings of more than 100 people].
Before the latest amendment, therefore, the default position was that only two people were allowed to gather or assemble in public, but larger gatherings – up to 100 ‒ could take place in specified circumstances: transport queues, funerals, religious services and so on.
What the New SI Does
The new SI 299A/2020 amends section 5(1) so that it now states, as the general rule, that:
“no gathering of more than one hundred individuals in any public place are permitted”
and this is followed by the same long list of exceptions, which allow up to one hundred people to gather for transport queues, funerals, religious services, etc.
The clear implication of the words we have quoted are that public gatherings of 100 people or less are permitted. Admittedly this makes the list of exceptions more than a bit odd, because they too permit gatherings of up to 100 people to take place in certain limited circumstances; but there is really no other way to interpret the words of the new amendment.
A further point about the amendment is that not only does it allow up to 100 people to gather in public places, but it apparently allows them to gather without taking precautions against Covid-19. This is because there is no general provision in the Lock-down Order requiring people in public places to wear face-masks and observe social distancing.
Consequences of the Amendment
The consequences of the amendment are far-reaching, as we said earlier.
Political Gatherings Cannot Now be Prohibited
The first is that the Government can no longer prohibit political demonstrations and meetings on the ground that they contravene the Public Health Covid-19 Regulations and Order. As we have explained, up to 100 people can now gather in public for any purpose, including a political purpose. If, therefore, a political organisation or even private individuals want to gather together to demonstrate or to hold a political meeting, they must be allowed to do so provided that:
- no more than 100 people gather together,
- they comply with the Maintenance of Peace and Order Act – e.g. they notify the Police of their intention to hold the demonstration or meeting, and
- (preferably) they wear face masks and observe the social distancing rule. They should do this out of a sense of social responsibility even if they are not legally compelled to.
Certain Prosecutions Should Fall Away
The second consequence affects people who have been charged with contravening the Lock-down Order on account of their participation in a political gathering or demonstration. If they have not yet been convicted of the offence, and if the gathering comprised no more than 100 people, then their trials will have to be terminated. This is because section 70(1)(l) of the Constitution provides that:
“Any person accused of an offence has the following rights—
(l) not to be convicted of an act or omission that is no longer an offence”.
It is no longer an offence under the regulations for up to 100 people to gather in public. Therefore no one can be convicted of it.
In many countries throughout the world, including Zimbabwe, there has been a resurgence of COVID-19. For example, Mpilo Hospital Bulawayo recently reported that 17.3% of those tested were COVID-19 positive. This would mean that in a gathering there of a hundred people, seventeen would be positive and contribute to an even more rapid spread of COVID-19. In other countries the resurgence is being met by a re-imposition or tightening of lock-down measures. For example South Africa has just imposed far stricter lockdown regulations including criminalising not wearing masks. In Zimbabwe, by contrast, we seem to be relaxing our lock-down. It is not clear why we are doing this. The Ministry of Health and Child Care should issue a statement explaining to the public what the Government’s thinking is on combating the Covid-19 epidemic. Better still, the Minister, or whoever is acting in that capacity, should inform Parliament of the Government’s plans.
A consolidated version of the Lock-down Order, incorporating the amendment made by this new SI, can be accessed on the Veritas website [link].