Human rights lawyers on Wednesday 6 January 2021 filed an urgent chamber application at the High Court seeking an order to compel government to urgently place them on the list of essential service personnel to allow them to offer legal assistance to those in need during the subsistence of the national lockdown period.
Health and Child Care Minister and Vice-President Constantino Chiwenga on Saturday 2 January 2021 announced the imposition of a national lockdown which took effect from Tuesday 5 January 2021 and will last for 30 days.
During this period, Chiwenga authorised some selected essential services and providers to remain open and operational and ordered all non-essential enterprises and service providers to shut down and stay at home. Government also announced a dusk to dawn curfew aimed at curbing the spread of coronavirus, whose cases have been on an
unprecedented surge in recent weeks.
In response to government’s order, human rights lawyer Obey Shava and Young Lawyers Association of Zimbabwe (YLAZ) represented by Tonderai Bhatasara of Zimbabwe Lawyers for Human Rights on Wednesday 6 January 2021 filed an urgent chamber application at High Court arguing that the decision by government to omit lawyers from a list of essential
service workers considered essential service providers obstructed legal practitioners from practising and had serious ramifications for access to justice by people in need of such a service.
Shava and YLAZ filed the application after some law enforcement officers manning roadblocks and check points on Tuesday 5 January 2021 and purporting to be enforcing Statutory Instrument (SI) 10 of 2021 had turned back lawyers who were on their way to work after they allegedly failed to produce “authority to travel letters.”
Shava said he was delayed for 30 minutes at a roadblock on Tuesday 5 January 2021 when he allegedly failed to produce an exemption letter despite producing his Practicing Certificate issued by Law Society of Zimbabwe.
Shava and YLAZ, who listed Chiwenga, Home Affairs and Cultural Heritage Minister Kazembe Kazembe and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi as respondents, protested that government’s conduct in not recognising lawyers as part of
professionals considered essential service providers or workers is a violation of lawyers’ rights as well as litigants and arrested persons provided in section 50, 64, 66, 69 and 70 of the Constitution.
In their application, Shava and YLAZ argued that government is oblivious of the role that lawyers play in society.
Shava and YLAZ contented that lawyers are essential in completing the chain of the justice delivery system and the rights of accused persons to access lawyers of their choice as provided in the Constitution would be undermined by government’s decision to treat legal
practitioners as non-essential service providers.
Shava and YLAZ said the implementation of SI 10/2021 and 11/2021 as read with SI200/2020 by enforcement officers is not a permissible limitation of rights in terms of the provisions of section 86(2) of the Constitution hence the limitation is not fair and reasonable and is not necessary and justifiable in a democratic society.
The lawyers stated that section 86(3) of the Constitution provides that no law may limit the right to a fair trial, the right to obtain an order of habeas corpus among other fundamental rights.
Shava and YLAZ argued that the government order had rendered legal services as non-essential services and that the administration of justice cannot be done without the involvement of lawyers and the services they provide.
Lawyers, Shava and YLAZ stated, are an integral part and an essential component in the economic production ecosystem, the justice delivery system including law and order and are critical in a democratic society.
The lawyers want the High Court to order government to treat all lawyers as people carrying out essential services and to declare that legal services are an essential service under S.I 10/2021 and SI 11/2021 during the period of the national lockdown.
Shava and YLAZ also want Chiwenga’s conduct or omission by not including legal services as essential services in SI 10/2021 and 11/2021 to be declared unconstitutional.