In Bill Watch 57 of 2020 [link] and 61 of 2020 [link], we analysed the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (No. 2) Order [SI 200 of 2020] and the amendments made to it. Then last Wednesday the Minister of Health and Child Care published further amendments to the Order in SI 223 of 2020 [link], and yesterday published an amendment to the Public Health (COVID-19 Prevention and Containment) Regulations [SI 77 of 2020]. In this Bill Watch we shall outline the effect of these amendments.
Postponement of By-elections
In SI 225A of 2020 [link], published yesterday, the Minister of Health amended section 3 of the Public Health (COVID-19 Prevention and Containment) Regulations to say that while the declaration of Covid-19 as a formidable epidemic disease is in force ‒ i.e. until the 1st January next year, subject to extension ‒ the holding of by-elections to fill vacancies in the National Assembly and local authorities is suspended. The 90-day period within which by-elections must be held in terms of section 158(3) of the Constitution begins to run from the date on which the declaration ends.
This is unconstitutional. In our Election Watch 1 of 2020 of the 17th May [link], we commented on an earlier attempt by the Zimbabwe Electoral Commission [ZEC] to suspend by-elections because of the Covid-19 pandemic, and concluded that ZEC could not do it. The same goes for this attempt.
Section 158 (3) of the Constitution states quite clearly:
“Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred …”
The Constitution makes no provision for an extension of the 90-day period, even during a state of emergency ‒ and a state of public emergency is not currently in force. Just as ZEC had no power to suspend by-elections by administrative decree, so too the Minister of Health has no power to suspend them through regulations under the Public Health Act. The Constitution overrides administrative decisions and regulations. The Constitution must be obeyed.
We turn now to the amendments to the Lock-down Order in SI 223/2020 [link].
Intercity Transport Allowed
Intercity passenger transport is allowed, so long as the operators are temporarily registered by the Controller of Road Transport to ply their routes in terms of the new section 4(8) of the Lock-down Order. Operators have to comply with guidelines issued by the Ministry of Health and, in addition:
· their vehicles can travel only between 6 a.m. and 8 p.m. daily [section .4(8)(d) of the Order]
· their vehicles must be disinfected at least twice daily [section 4(3)(a) of the Order]
· passengers have to be temperature tested and have their hands sanitised before they board their vehicles [section 4(3)(b) of the Order]
· passengers must observe social distancing and wear face masks [section 4(3)(c) of the Order], and
· drivers [but not conductors or other staff] must be tested for Covid-19 at least once a month [section 4(3)(d) of the Order].
It is not clear if ZUPCO is the only commercial organisation allowed to ply intercity routes. Section 4(2) of the Lock-down Order says that it is, but the new section 4(8) suggests otherwise.
It may be noted here that airports have been opened to domestic flights from the 11th September and, from today (the 1st October), to international flights.
New “Essential Services”
People engaged in essential services are generally exempt from the restrictions of the national lock-down. Now the work of the Government’s vehicle inspection department (the VID) and the Department of Immigration have been added to the definition of “essential services” in section 2 of the Lock-down Order. This means that the staff of those two departments can carry out their functions, which will be increasingly necessary with the easing of travel restrictions. They will, of course, have to take the standard precautions, i.e. observe social distancing and wear face masks in public.
Easing of Restriction on Divine Worship
Up to 100 adults may gather at churches, mosques, temples and other places for the purpose of worship [section 5(1)(j) of the Order]. Previously the number of adult worshippers was restricted to 50. They must wear face masks and be temperature tested and have their hands sanitised, and if they gather in a building it must be disinfected before each service. They will also have to wear face masks and observe social distancing.
This provision, it may be noted, applies only to adults; children are covered by the general prohibition against gatherings of more than two people. Hence, if section 5(1)(j) is strictly construed, it allows 100 adults to congregate for worship, together with not more than two children. If three or more children join them the congregation becomes an illegal gathering and must be dispersed. That was probably not what was intended.
Opening of Gymnasiums
Section 18 of the Lock-down Order has been amended to allow gyms to open between 6.30 a.m. and 6.30 p.m. on any day. Patrons have to observe the usual precautions, i.e. they have to be temperature tested and have their hands sanitised on entry, and must observe social distancing and wear face masks while inside.
Opening of Certain Tourist Facilities
Section 19B of the Lock-down Order is amended to allow museums and other facilities operated by the Trustees of the National Museums and Monuments to open in the same way and subject to the same conditions as other tourist facilities
Ending of Extension of Residence Permits, Licences, etc
Section 6 of the Lock-down Order extended the validity of residence permits, work permits and diplomatic visas until after the end of the national lock-down, presumably so that the holders would not have to go to the offices of the Department of Immigration to seek renewal of their permits and visas. Similarly, section 24 of the Order extended the validity of learner drivers licences and defensive driving certificates until after the end of the lock-down.
Amendments to sections 6 and 24 of the Order bring these extensions to an end on Wednesday 30th September.
Consolidated Lock-down Order
A consolidated version of the Lock-down Order showing all the amendments made to it can be accessed on the Veritas website [link]. A consolidated version of the Covid-19 Regulations can also be accessed on the website [link].