High Court dismisses lockdown challenge

THE attempt by an organisation claiming to represent the informal sector to end the Level Four national lockdown failed after the High Court dismissed the urgent application on several grounds with the judge stressing that the decision to revert to the higher level of lockdown was backed by evidence of a surge in infection rates.

The urgent application was brought by the Zimbabwe Informal Sectors Organisation (ZISO) and activist Mfundo Mlilo and was dismissed by Justice Pisirayi Kwenda, who dealt both with the legal issues raised by Ziso and the Ministry of Health and Child Welfare and with what he saw as the merits of the case.

Vice President Constantino Chiwenga, who is also Health and Child Care Minister, last month announced a 30-day reversion from Level Two to Level Four for the national lockdown following a festive season surge in Covid-19 infections.
Under Level Four essential services, which include farming, along with mining and manufacturing can continue operating. But the general retail trade, with the exception of supermarkets, food shops and outlets, and pharmacies is closed and that includes most of the informal sector. These had been operating under Level Two.

In addition, the start of the curfew was brought forward from 10pm to 6pm and enforcement of the continuing ban on unnecessary movement was more strongly enforced.

The Level Four has since been extended to February 15 to consolidate the gains already seen in the first 30 days.
The ruling by Justice Pisirayi Kwenda comes after ZISO challenged the State’s decision to upgrade the national lockdown back to Level Four.

They wanted an order declaring the statutory instrument 10 of 2021 gazetted on January 2 to raise the national lockdown back to Level Four declared constitutionally invalid.

But Justice Kwenda ruled that ZISO could not arrogate to itself the right to speak for everyone hence it has no legal basis to institute proceedings on behalf of other people. He challenged the organisation to submit proof that all the people it purports to represent volunteered to be its members.

He then turned to other issues. “A court may not review a law simply because it is unpopular with a section of the citizenry. The law may be unpopular to the applicant but there is no way of knowing what the other millions think.”
The judge said when the country last month experienced a sudden resurgence of the pandemic resulting in a spike in Covid-19-related infections and deaths, the ministry responded to the sudden surge of the epidemic, with VP Chiwenga invoking the law-making power given to the Health Minister in terms of the Public Health Act.

The statutory instrument, Justice Kwenda ruled, was promulgated because of the need to curb the spread of Covid-19 and save lives, which the law gave as reasons for certain valid restrictions of rights.

“The resultant loss of income is not permanent since it will only last for the period of the projected life of the Statutory instrument which is 30 days and is far outweighed by the objective to save lives,” he said.

The judge also noted that the Ministry of Health and Child Care, which was cited as respondent in the matter, had attached proof of the rise in Covid-19 infections and related deaths and publishes situational reports and statistics on new infections, deaths and recoveries in the form of graphical analysis and presentation which are all public knowledge.
“SI 10/2021 was, therefore, necessary because it had become increasingly difficult to control the behaviour of persons plying their trade in the informal sector and ensure compliance with WHO guidelines. The informal sector is generally non-compliant,” said the judge.

It was also the court’s finding that Vice President Chiwenga was appointed Minister of Health and Child Care in terms of the Constitution to administer the Ministry and the Public Health Act hence made the impugned regulations in terms of the Public Health Act and as Health Minister.

Justice Kwenda also noted that the statutory instrument being complained about did not introduce anything new. It was an amendment to existing regulations and simply reverted the level of the lockdown from Level Two back to Level Four.
The national lockdown, however, has the natural effect of limiting certain rights and freedoms enshrined in the Bill of Rights, but VP Chiwenga had to act in terms of the law to curb the spread of the deadly virus, said Justice Kwenda.

All the regulations made to combat Covid-19 are made in a two-step process. Under the Public Health Act, the Health Minister can declare a new infection as one needing special measures and can then state what powers are needed to regulate controls, along with penalties. The Health Minister did this with SI77 of 2020. These powers were then used to specify lockdown regulations, eventually consolidated in SI200 of 2020.

But ZISO, represented by Mr Alec Muchadehama, was arguing that the Health Minister could not derive the power to make lockdown regulations from SI 77, since that in itself was a statutory instrument made by him and so, it was argued, he exceeded the powers delegated by Parliament under the Public Health Act.

Mr Muchadehama also argued on the merits of the regulations, saying that the restrictions and measures imposed by the return to Level Four were arbitrary, irrational and unlawful because they were not borne out of consultation with the Zimbabwean citizenry, and that the Health Ministry failed to give notice and provide safety nets for the vulnerable during the period of lockdown.

Both arguments were considered to lack merit.

Opposing the application, the Ministry of Health and Child Care, through its legal representative, Mr T. Musangwa from the Attorney General’s Office civil division, raised preliminary objections, first that ziso did not state in its founding papers the basis upon which it claims legal personality and such personality was not apparent from its name.

It also argued that the constitutional issues raised by ZISO were subject of the exclusive jurisdiction of the Constitutional Court, saying the High Court was precluded from adjudicating on the constitutional issues that arise. It was further argued that the High Court had no jurisdiction to suspend the operation of a Statutory Instrument following an urgent chamber application, which Justice Kwenda considered in deciding the matter on the preliminary points raised.

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