Common Law With Mike Murenzvi
“They criticise me for harping on the obvious; if all the folks in the United States would do the few simple things they know they ought to do, most of our big problems would take care of themselves.”
~ Calvin Coolidge
On March 23, 2020, the coronavirus, COVID-19, claimed its first victim in Zimbabwe, “patient 2”. Rest in eternal peace, Zororo Makamba.
Carrying on from last week’s article and with the weight of this death, I examine the response by our Government in the face of the coronavirus pandemic with particular reference to last week’s article, Coronavirus and the law.
A timeline of major COVID-19-related events:
20 February – Zimbabwe receives first suspected case of COVID-19. Patient subsequently tested negative.
18 March – President ED Mnangagwa verbally declares COVID-19 a national disaster.
20 March – Zimbabwe records first confirmed coronavirus case.
21 March – Zimbabwe records second confirmed coronavirus case.
23 March – Zimbabwe records first coronavirus death.
23 March – Zimbabwe officially declares a national state of disaster in respect of COVID-19
23 March – Zimbabwe officially declares COVID-19 as a formidable epidemic disease and makes public health regulations specific to the disease.
23 March – President ED Mnangagwa announces stricter control measures.
In last week’s article, I lamented the great delay in the Government’s legal and practical reactions to this disease. Since then, it has taken at least multiple scares, two confirmed cases and a death to finally declare COVID-19 as a formidable epidemic disease.
Following the death of Makamba, the President gazetted SI 76 of 2020, Civil Protection (Declaration of State of Disaster: Rural and Urban Areas of Zimbabwe) (COVID-19) Notice, 2020. This notice put into legal force the announcement made by the President on 18 March 2020.
“In the wake of the declaration by the World Health Organisation of COVID-19 as a global pandemic, a state of disaster exists in all rural and urban areas in Zimbabwe with effect from promulgation of this notice.”
Further to this, the Minister of Health gazetted SI 77 of 2020, Public Health (COVID-19 Prevention, Containment and Treatment) Regulations, 2020. These regulations did four main things;
Firstly, they declared COVID-19 as a formidable epidemic disease; secondly, they ban public gatherings of more than 100 people; thirdly, they empower an “enforcement officer” to give orders; lastly, they enable the implementation of measures to prevent, contain and treat COVID-19 incidents,
Formidable Epidemic Disease (FED)
The declaration of COVID-19 as a FED is welcome and was long overdue. This is in effect until the 20th of May 2020.
In my opinion, there was no need for the Minister to place a time limit on that declaration as that could have been done in a separate SI declaring that an epidemic exists. The other diseases in that same FED category are listed for all time for one major reason, they can flare up again at some time in the future and we should never have to go through this minor legal process again.
Prohibition of Gatherings
The regulations ban “all” gatherings that exceed 100 people for any purpose except a primary or secondary school.
An enforcement officer can order the dispersal of people from a gathering that exceeds the threshold. Failure to comply with that order may lead to the arrest of the conveners and any person still present. The sentence for this ranges from a fine of not more than ZWL 36,000 or imprisonment of not more than a year, or both, depending on the circumstances.
Compulsory testing, detention
An enforcement officer is authorised to order any person or group suspected of being infected or that may have been in contact with an infected person to be examined, detained, quarantined, isolated, or treated under the direction of specialised health personnel.
Quarantine and other detention measures can be ordered where the enforcement officer thinks best, including within a designated place, their homes, or a hospital, for a period of up to 14 days.
Failure to follow those orders also attracts a fine of up to Z$36,000 or imprisonment of up to one year, or both, depending on the circumstances.
Any person who escapes detention, quarantine, or isolation may be arrested without a warrant.
Specific orders – the missing link
The regulations give the Minister the power to issue “orders”, by way of additional statutory instruments, pertaining to closure of schools; curfews and restriction of traffic; closure of churches, bars and other places of entertainment; burials and cremations; disinfection of premises; and closure or demolition of premises to contain an outbreak.
This entire section is pointless and redundant as the Public Health Act already gives the Minister these powers once the FED declaration has been made.
The SI 77/2020 is eight pages long but the real substance of it could fit on just two pages. The rest of the document is redundant in what can only be described as a colossal waste of eight pages.
The fact that SI 77/2020 was overridden by the President’s address to the nation within hours of its issue should be a major cause for concern. It is evidence of the effect of great delay and indecision in the crisis management process and now leaves us in a quandary. Which rules do we follow; the Presidential announcement or the SI?
How did South Africa do it?
A comparison with other SADC countries that have made regulations regarding the prevention and containment plans for COVID-19 shows that Zimbabwe hasn’t started the fight. We’re still planning the plan.
South Africa has issued two major regulations so far. The first being the main regulations covering the areas that Zimbabwe woefully omitted, and the second being amendments more specific to their 21-day lockdown, effective 26 March 2020. The South African regulations are well crafted and detailed in such a manner that leaves no question as to the plan of action and the obligations of the State and the people.
What should Zimbabwe do?
Whatever plan of action Zimbabwean authorities take in their efforts to combat the disease, it must be clear, concise, and unambiguous. All parties must know their rights, duties, and obligations in that fight without leaving critical areas to chance and whim.
This country issues numerous SIs on a weekly basis, except now when we need them most. Even after a death, the powers that be still aren’t taking this fight seriously.
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