By David Hofisi| Like several countries, Zimbabwe is in a state of lockdown. In response to the Covid 19 pandemic, the Minister of Health promulgated a series of statutory instruments to prevent further infections. Individuals are confined to their homes by law except in such circumstances as grocery shopping and purchase of drugs. It is only the forms of work which are deemed essential services which are to continue until 3 May 2020. The statutory instruments also provide for compulsory testing and allows members of the military to assist the police in enforcement.
These measures are laudable to the extent that they combat a highly infectious global pandemic.
However, this noble intention does little to mask patent constitutional invalidity. The 2013 Constitution contains an expansive declaration of rights. These rights are heavily implicated by the national lockdown.
The prohibition of gatherings suspends the rights to freedom of association, assembly, expression and the right to demonstrate and petition. Confinement in the home derogates from freedom of movement whilst limiting access to work is obviously against the section 64 right to ‘carry on any profession, trade or occupation.’
These rights are not absolute. The Constitution allows the limitation of most rights in the public interest including for public health reasons. Such limitation would qualify as reasonably justifiable if enacted through a law of general application.
The Constitution distinguishes laws passed by Parliament from statutory instruments from the executive branch. The statutory instruments establishing the national lockdown would be sufficient to limit rights were it not for section 134 (b) of the Constitution; statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;
It is abundantly clear that the Constitution does not allow a statutory instrument to limit a constitutional right. This is left to Acts of Parliament.
In other words, it is only when the people’s elected representatives pass a law, and it is signed by the President, that a right can be limited. It is a coordinate branch responsibility. Limitation of rights upon the stroke of a Minister or the President’s pen is no longer constitutionally permissible.
These checks and balances are meant to preserve popular democratic participation. Parliament is central to any limitation of rights because of its representative role. It ensures that the people remain engaged in the constitutional conversation.
The procedure for passage of a bill, which includes public hearings, reduces the distance between the people and their own governance. It ensures a balance between top-down and bottom-up approaches to governance. Thus, the Government of Zimbabwe should have called an emergency session of Parliament to consider bills necessitated by the pandemic.
This process would have allowed members of Parliament to bring the plight of their constituents to bare and have this reflected in subsequent legislation. In the United States, this was the process by which Congress incorporated a version of universal basic income for all Americans. The failure to incorporate such concerns has led to stiff resistance and a court order against the lockdown in Malawi.
This is the reason why the Constitution contemplates a state of public emergency for such circumstances. It defines the extent to which rights can be limited by emergency laws and subjects such declaration to approval by Parliament (if it does not fall away within fourteen days or twenty one if Parliament is not in session).
It does not contemplate unilateral action out of the executive branch. However, this is what the government of Zimbabwe opted for in making a declaration of a national disaster. Such declarations empower the executive to issue statutory instruments.
The Civil Protection Act, which provides for national disasters, predates the current constitution. Even though Ministers can still promulgate statutory instruments, the Constitution no longer permits such when they limit fundamental freedoms.
This renders the entire scheme for the national lockdown unconstitutional. This should not be blamed on non-alignment of laws with the Constitution. Rather, it should be understood in the context of institutional choices by a Machiavellian executive. It is not an innocent mistake by a well-meaning administration.
These are powerful functionaries circumventing constitutional imperatives to increase the scope and scale of executive power. Not only do the statutory instruments infringe fundamental freedoms, they create new powers, such as those allowing the Minister of Home Affairs to close ports of entry and exit as he/she deems fit. Yet there remain no answers to the crucial questions of whether the state will pay for the Covid 19 tests, who will provide for workers who are laid off and social safety for the informal sector.
These crucially important provisions should be contained in a comprehensive parliamentary bill which incorporates the views of all critical stakeholders. Statutory instruments will not suffice. Times of crises present uncertainty, which makes many yearn for decisive action, even if it be authoritarian.
This heightens the need to be wary of high level power grabs and constitutional misfeasance, more so when subsidiary legislation is used to justify yet another deployment of the notorious Zimbabwean military onto the civilian population.