President Emmerson Mnangagwa's announcement of a 21-day national lockdown across Zimbabwe to combat the spread of the Covid-19 virus was accompanied by a raft of laws, which are draconian, excessive and may be unconstitutional. Statutory Instrument (SI) 83 of 2020, the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020, sets out restrictions that potentially violate fundamental rights to property and to freedom of expression.
Perhaps the most far-reaching provision in curtailing freedom of expression is the provision in SI 83 to punish the publication or communication of false or fake news during the national lockdown period -- which attracts an excessive punishment of 20 years imprisonment. Section 14 of the regulations says: "For the avoidance of doubt, any person who publishes or communicates false news about any public ofﬁcer, ofﬁcial or enforcement officer involved with enforcing or implementing the national lockdown in his or her capacity as such, or about any private individual that has the effect of prejudicing the state's enforcement of the national lockdown, shall be liable for prosecution under Section 31 of the Criminal Law Code ("Publishing or communicating false statements prejudicial to the state") and liable to the penalty there provided, that is to say a ﬁne up to or exceeding level 14 or imprisonment for a period not exceeding 20 years or both."
While it is essential that journalists and members of the public take care not to spread false news, this provision potentially violates the constitution's Section 61 guarantee of the right to freedom of expression in that it is too broad and vague, and provides for excessive punitive measures. If implemented as currently framed, this law will constraint the work of journalists, unduly muzzle social media, and prevent legitimate criticism of the authorities' response to Covid-19.
Zimbabwe is party to the African Charter on Human and Peoples' Rights (the African Charter) and the International Covenant on Civil and Political Rights, both of which guarantee the right to freedom of expression. Article 9 of the African Charter provides that "every individual shall have the right to receive information" and "the right to express and disseminate his opinions within the law".
Article 19 of the International Covenant on Civil and Political Rights sets out the basic international standards for the right to freedom of expression, which may only be restricted by law and as is necessary for reasons of national security, public order, or public health or morals.
Government has an obligation to protect the right to freedom of expression, including the right to seek, receive, and impart information of all kinds. Governments are responsible for providing information necessary for protecting and promoting rights, including the right to health. Permissible restrictions on freedom of expression for reasons of public health may not put in jeopardy the right itself.
A rights-respecting response to Covid-19 needs to ensure that accurate and up-to-date information about the virus, access to services, notice of service disruptions, and other aspects of the response to the outbreak is readily available and accessible to all. Instead of muzzling the press and the public, the Zimbabwe government should be providing an enabling environment for the public to seek, receive, and impart information of all kinds, regardless of frontiers.
Permissible restrictions on freedom of expression for reasons of public health, noted above, may not put in jeopardy the right itself. The prospects of a jail term for allegedly publishing false news during the national lockdown imperils the right to free expression.
The Zimbabwe government, like other governments, is responsible for providing information necessary for the protection and promotion of rights, including the right to health. The Committee on Economic, Social and Cultural Rights regards as a "core obligation" providing "education and access to information concerning the main health problems in the community, including methods of preventing and controlling them".
A rights-respecting response to Covid-19 needs to ensure that accurate and up-to-date information about the virus, access to services, service disruptions, and Zimbabwe should fully respect the rights to freedom of expression and access to information, and only restrict them as international standards permit.
Section 12 of the new regulations provides that no person shall, at his or her home or in any other premises or location, hoard food in excess of what is needed to be stored for himself or herself and his or her family during the period of the national lockdown. The law gives powers to the enforcement officers to secure a warrant of arrest from a magistrate or justice of peace, and to search private homes or properties to check if families have excess food and medical supplies necessary for to cover the national lockdown.
It is grossly unreasonable for the police to be made the judge of what amount of food a family should have in their private home, and for the police to have the power to forcibly take any food they think is in excess. With varying family sizes, and food and medicine needs, what is the generic standard of measurement that determines what each family should have for a period of 21 days?
Before the onset of Covid-19, Zimbabwe was already experiencing a massive humanitarian crisis, with over half the population facing starvation in the absence of food aid. People should have the right to find food, and stock up, some with assistance from the diaspora, and the government should not use draconian laws to impoverish people and make them more food insecure.
This law has no place in a democratic government. If Zimbabwe is genuinely in a new dispensation as the Mnangagwa government often claims, then this law should be amended or repealed as appropriate to remove all draconian provisions.
In their responses to the Covid-19 pandemic, the Zimbabwe authorities have an opportunity to redeem themselves and to reset the button of relations between the security forces and the public.
During the short life of Mnangagwa's administration, the security forces had acquired notoriety for being heavy-handed and for excessive use of force in their responses to the August 2018 post-election violence, and to the protests of January 2019. Now is the time for the security forces to insist on progressive regulations that are rights-respecting, and that are implemented in ways that enhance the protection of members of the public.
When enforcing the national lockdown, the security forces should approach the duty as a broad public relations exercise, to project a new, positive image of the security forces that cares and supports vulnerable members of the communities.
Given the vulnerabilities of various communities, including that more than two million people in Harare and Chitungwiza do not have access to clean water, there is a role for the security forces to play in helping provide clean water and food to communities in dire need.
A national lockdown is effective and it is enforced, not only through the law, but also through ensuring that the government discharges its obligation to provide food and water and health services to vulnerable members of its community.
Many older people and people with disabilities rely on uninterrupted home and community services and support. The army and the police should engage in public awareness campaigns to educate members of the public of the dangers of Covid-19, and the importance of compliance with lockdown without resorting to violence or excessive force.
In the midst of this public health crisis, the government should take advantage of the new constitutional and human rights framework to fulfill the aspirations of millions of Zimbabweans who are desperately looking to the new dispensation for an improvement in the quality of their lives.
What better way of ushering in the "new dispensation" than through protecting the most vulnerable members of society by resorting to progressive laws that are rights-respecting and result in more freedoms.
Mavhinga is the Southern Africa director at Human Rights Watch (HRW). He has more than 10 years research and advocacy experience on Zimbabwe as well as in Southern Africa. Before joining HRW, he worked as the regional coordinator of Crisis in Zimbabwe Coalition based in Johannesburg. In 2012, he co-founded the Zimbabwe Democracy Institute, a public policy research think-tank based in Harare. A recipient of the British Chevening and Canon Collins Trust scholarships, Dewa holds a Bachelor of Law (Honours) degree (LLB) from the University of Zimbabwe and a Master of Law degree in international human rights (LLM) for Essex University, United Kingdom.