THE LOCKDOWN COURT CHALLENGE
Hello, my name is Obert Kondongwe, and together with a few other like-minded souls, we are launching a legal challenge against the recent ZIM Govt Covid -19 Lockdown.
We believe that the Govt has acted illegally and disproportionately over the COVID 19 lockdown and we are taking action.
By forcing people to stay at home, and forcing businesses to close, they are, we believe, in contravention of basic Human Rights offered under our Constitution, International Human Rights conventions and the common law.
The lockdown has and will lead to devastating economic impact (massive unemployment, tax increases, closure of businesses, etc) It has, and will lead to far more deaths from suicide, undiagnosed conditions, untreated conditions – indeed far more than would have been potentially saved by the lockdown.
What we wish to achieve in bringing this case, is simply the freedom of individuals – the freedom to visit friends, freedom to earn a living, to socialize, in essence, the freedom of choice. That, of course, includes the freedom to stay inside – should you choose.
This Court action challenges the lawfulness of (Coronavirus) Regulations, through which restrictions have been imposed on every aspect of personal and public life throughout Zimbabwe. It is our contention that the Regulations were, from the date on which they entered into force and various amendments, unlawful on the following grounds that:
1. They are ultra vires the Constitution in several respects as they infringe on fundamental human rights and freedoms;
2. They are over-rigid in considering only their effect on containing the coronavirus and not whether each of them were the least restrictive means of doing so or proportionate to the harms done by the restrictions, Thus, the Government failed to consider the following relevant considerations before deciding whether to impose the Regulations:
(a) the uncertainty of scientific evidence about the effectiveness of the restrictions;
(b) the effect of the restrictions on public health, including deaths, particularly from untreated or undiscovered cancer and heart disease, mental health and the incidence of domestic violence;
(c) the economic effect of the restrictions relative to the economic effect of alternative less restrictive means of limiting its spread;
(d) the medium and long-term consequences of the measures; and
(e) whether, in the light of those considerations, less restrictive measures than those adopted would have been a more proportionate means of obtaining the objective of restricting the spread of the coronavirus without causing disproportionate harms;
3. The restrictions, preventing social gatherings are a disproportionate breach of fundamental rights and freedoms protected by the Constitution and various Conventions on Human Rights and Fundamental Freedoms.
4. There are principles of international law developed and adopted for that purpose during public health crises, in circumstances where restrictions are likely to impact upon a nexus of different rights and freedoms. They incorporate well established proportionality principles and must be considered alongside the proportionality of restrictions of individual rights, all of which will also be relevant to the determination of the challenge.
5. Restrictions should, at a minimum, be:
a. carried out in accordance with the law;
b. directed towards a legitimate objective;
c. strictly necessary in a democratic society to achieve the objective;
d. the least intrusive and restrictive available to reach the objective;
e. based on scientific evidence and neither arbitrary nor discriminatory in application; and
f. be of limited duration, respectful of human dignity, and subject to review.
6. In such circumstances, they could only be proportionate if the positive effect of their imposition on the coronavirus (if any) relative to less restrictive measures was not outweighed by the harms they might cause.
7. The impact of the Regulations on rights and freedoms is particularly grave. In particular:
a. They constitute a deprivation of liberty, by which no individual may leave the place where he lives. The only public health qualification to this right permits an individual to be quarantined.
b. The maintenance of relationships with parents, children, and siblings, is deprived.
c. The restrictions on gatherings prevent worshipers from attending or gathering in any places of worship other than for funerals.
d. The interference with the political rights of association and social activities
e. The isolation required by the Regulations being indirectly discriminatory on those with mental illness (in view of the isolation it imposes) on women (given that they are disproportionately affected by the domestic violence that has more than doubled during the ‘lockdown) and on poorer and disabled children (whose education has suffered much more than others).
f. The closure of businesses will decrease their goodwill
g. Many children will be denied the ‘basic minimum of education’,
8. The Court must evaluate the Regulations as follows:
(i) determine the appreciation of the facts upon which the policy was based;
(ii) consider whether that appreciation was rational and continues to be rational on the basis of all the evidence before the government; and
(iii) determine on the basis of that evidence whether the interferences are the least restrictive means of obtaining the objective of containing the virus while not causing disproportionate harms, and thus a proportionate response, based on a rational factual appreciation of the facts at the date of the review.
(iv) Evaluation of comparative evidence is critical to any decision that the restrictions are either the least intrusive and restrictive available to reach the objective of reducing viral spread or are strictly necessary in a democratic society to achieve that objective. It is impossible to make either decision without it; and the apparent failure of the government to do so before imposing the Regulations or failing to terminate them can only undermine the suggestion that they are both proportionate and necessary.
WHAT MUST YOU DO TO CONTRIBUTE TO THIS COURT CHALLENGE
1. Spread the word so that we get as many subscribers to our petition;
2. Research on the subject and furnish material necessary to mount the challenge; e.g scientific and comparative evidence relating to pandemic preparation, lockdowns, covid 19, scientific material and evidence of the relative merits of alternative measures taken by other jurisdictions that at least demonstrate a real controversy amongst experts in the field about the efficacy and effectiveness of ‘lockdowns’ to reduce viral spread; and contradict the suggestion it is so much more effective than less regressive measures such as to justify the extreme impact it has on the rights and freedoms considered above. The reliability of modelling the spread of a novel virus when so many critical factors are unknown is highly contentious. The European state whose policy has been most at odds with the rest of the continent has been Sweden, which has not introduced a ‘lockdown’, has kept primary schools open and has not closed shops, restaurants or even bars.
3. Medical Expert evidence and others;
4. Legal fees for the Court challenge- we intend to set up a crowd funding scheme;
5. Contribute any other relevant ideas.
6. Join a particular committee. So far we have
a. Legal committee
b. Finance committee
c. Research committee
d. Advisory committee
e. Medical committee
STRATEGIC PLAN GOING FORWARD
1. We want to serve the Minister of Heath and relevant Government bodies with our letter of demand for them to remove the lockdown restriction or at least lessen the restrictions by Wednesday 6 January 2021;
2. Failing which, we want to file our Court claim against the Lockdown by Monday 11 January 2020
We thank you