Common Law With Mike Murenzvi
“A central focus here is on why and how the government regulates private individuals and corporations in the name of protecting the health, safety, and welfare of the general public.” ~ Joel B. Teitelbaum
The novel coronavirus, Covid-19, has infected over 170,000 people in over 150 countries and territories worldwide and caused over 6,500 deaths. At the same time there have been over 77,000 recoveries.
On 30 January 2020, the World Health Organization (WHO) declared Covid-19, as a “Public Health Emergency of International Concern” (PHEIC) and on 11 March 2020, the WHO characterised Covid-19 as a “Pandemic”.
Zimbabwe has experienced less than ten potential coronavirus scares since the identification of the coronavirus. The health authorities have instituted various measures to ensure the country is as ready as possible to tackle a case and potential outbreak of Covid-19, but is this response in compliance with existing legal framework of public health?
For the purpose of this discourse, we will largely examine the Public Health Act [Chapter 15:17] (PHA), and the International Health Regulations 2005 (IHR).
The PHA has a distinction of communicable notifiable diseases and those that graduate into formidable epidemic diseases. This distinction is largely based on the extent of the infected population and the spread of the disease. These categories of diseases come with very stringent reporting, response, management, and treatment obligations stipulated within the PHA and its associated regulations.
Under the IHR, the WHO also specifies set procedures and processes to follow whenever a potential epidemic arises in countries signatory to the IHR. “The purpose and scope of the regulations are to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
The medical and legal obligations in addressing this pandemic may seem numerous, but they are necessary to ensure that the rights of those affected and infected are maintained in the best way for the best possible outcome.
These obligations don’t just apply to Covid-19, but to any infectious and epidemic disease.
First, some key terms and definitions
“communicable disease” means a disease that can be transmitted from one person to another.
“infectious disease” means any communicable disease caused by pathogenic microorganisms such as bacteria, viruses, parasites, or fungi that can be spread directly or indirectly from one person to another as specified in section 46 of the PHA.
“notifiable disease” means any disease specified in section 46 of the PHA or in a statutory instrument issued by the Minister of Health and Child Care. These include, cholera, anthrax, rabies, yellow fever, and chicken pox among others.
“formidable epidemic disease” means any disease specified in section 64 of the PHA or any statutory instrument issued by the Minister of Health and Child Care. These include, cholera, epidemic influenza, typhoid, plague, and viral haemorrhagic fevers.
“epidemic” means a widespread occurrence of an infectious disease in a community at a particular time.
“pandemic” means an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people. (Source: A Dictionary of Epidemiology)
“Public health emergency of international concern” means an extraordinary event determined (using a defined decision matrix) to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated international response. (Source: IHR)
What does that mean and what does it have to do with the law?
Dealing with infectious diseases like Covid-19, especially in an epidemic situation, is as much a matter of public health as it is about law as this involves walking a fine line between safeguarding the general public and limiting the rights of sections of the population.
The Constitution gives us rights to healthcare, privacy, freedom of movement, and human dignity. Tackling an epidemic, like Covid-19, requires the limitation of those and other rights to safeguard the many.
When dealing with notifiable infectious diseases, the PHA gives the Minister of Health the powers to make regulations in respect of the powers and measures for the response based on the level of threat to public health. These include;
- Notification guidelines;
- Contact tracing;
- Hospitalisation, isolation, and quarantine;
- Patient care and power to administer treatment regimen;
- Duties of medical personnel;
- Home and family treatment;
- Medical fees payable or not payable, and
- Delegated powers to local authority health departments, among others
In the event of a formidable epidemic disease, these powers extend significantly to include:
- Extended quarantine areas and restrictions on traffic and movement of persons;
- Closure of schools;
- Bans on selected or all forms of public gatherings, whether religious, political; or entertainment;
- Limitations on building occupancies;
- Medical examinations to allow for entry or exit from the country or a specific area;
- Enforcement of quarantine measures including arrest or, as a last resort, the use of firearms or other weapons on an escapee;
- Reclassification of any premises into a detention, isolation or quarantine centre;
- Regulating how bodies of deceased victims should be disposed, e.g. by controlled burial or cremation;
- Inspection and disinfection of premises;
- Evacuation, closure, demolition or destruction of any premises that may be a significant source of the epidemic and setting of conditions for compensation.
In all cases, the Minister may set any additional measures based on the control plan.
The measures detailed above can only “legally” kick in for diseases formally declared as notifiable infectious, or formidably epidemic by way of a statutory instrument. It is in this aspect that the Minister of Health and Child Care has neglected or overlooked his duty to the nation.
The health ministry, and government as a whole, have already put into action measures of control without the attendant legal backing. While from a social view this action-first approach is commendable, from a legal standpoint, they may well be in contravention of the health and privacy rights of many people by subjecting them to mandatory screening, testing, and -in some cases- isolation measures.
In 2005, the WHO member states, including Zimbabwe, adopted a new revised form of the IHR in an effort to standardise and guide international responses to epidemics affecting member countries, especially where they turn into PHEICs.
WHO Member states are expected to incorporate the IHR in their own laws to give it effect within that country, while also developing their own public health response plans and structures that meet the minimum standards set out in the IHR.
The IHR provides for mechanisms where member states report any public health risks affecting them, and where necessary, seek technical and guidance and assistance in order to contain and manage the risk.
In general, the IHR is used by the WHO, in collaboration with other international organisations to advise member states on measures to take in outbreaks of identified health emergencies. These measures may include, travel warnings, traveller screening programs, border closures, treatment of goods and baggage from affected countries, and treatment of vehicles, ships and aircraft from affected areas or containing infected passengers. A key measure affecting travellers is that they cannot be made to pay for any mandatory screening, isolation or quarantine that happens in the course of their travels.
Zimbabwe is a full signatory to the IHR, without reservation or rejection. The PHA makes very specific reference to the IHR, in that it obligates the Government to publish the IHR, and any amendments made to it, in a statutory instrument “soon after Zimbabwe becomes party to such amendment.” In so doing, this would make the IHR part of Zimbabwean law.
The decision to enforce any measures in the IHR upon Zimbabwe vests in the President.
Under the IHR, Zimbabwe (and all other member states) is obligated to respond to a PHEIC by:
- Providing appropriate public health emergency response by establishing and maintaining a public health emergency contingency plan;
- Providing assessment and care of affected travellers by establishing arrangements with local medical facilities for isolation, treatment, and any other support services required;
- Providing appropriate space, separate from other travellers, to interview suspected or affected persons;
- Providing for the assessment and, if required quarantine of suspect or affected travellers, in separate facilities;
- Applying recommended measures to clean, disinfect, or sanitise baggage, cargo, vehicles, or vessels, when appropriate, in special locations designated and equipped for that purpose;
- Applying entry and exit controls for all arriving and departing travellers;
- Providing access to specially designated equipment, and trained personnel with appropriate personal protection, for the transfer of affected travellers.
Failure to institute recommended measures to control a PHEIC may lead to the WHO instructing surrounding member nations to expand the level of controls they have regarding entry by people from a non-compliant nation. These measures may include more stringent medical examinations or even travel bans to and from that country.
The IHR entered into force in 2007 and to date, Zimbabwe has not issued a statutory instrument to incorporate it into local law. So, while we may be compliant with the various guidelines and notices issued by the WHO concerning various disease outbreaks, including Covid-19, we are woefully non-compliant with our own local law.
For a country that is famed for gazetting Sis on all manner of issues at a whim, it’s both surprising and worrying that the coronavirus hasn’t jolted the same legal response.
Covid-19 is a global pandemic and our government should treat it as such. Preparations and precautions must be taken in all respects, including financial and legal.
The IHR must be incorporated into Zimbabwean law, and Covid-19 must be declared as an infectious disease and a formidable epidemic disease before we have a case on Zimbabwean soil.
These legal declarations mean that public finances can be directed where they are, and will certainly be, desperately needed to combat the spread and effects of the disease.
Now is not the time to be reactive, but rather proactive.
The views expressed in this article are the author’s personal opinions and should in no way be interpreted to represent the views of any organisations that he is associated or connected with. Feedback is greatly encouraged in the comments section below.