A ZIMBABWEAN woman is suing government, police officers and soldiers after she was bitten by dogs as the enforcement officers acted outside their mandate when they were enforcing the National Lockdown regulations.
In an urgent chamber application filed at the High Court in Harare on Thursday 9 April 2020, Lucia Masvondo of Karoi in Mashonaland West province and Zimbabwe Lawyers for Human Rights (ZLHR) asked the High Court to issue an order protecting the 26 year-old woman against the conduct of some Zimbabwe Republic Police (ZRP) members and some Zimbabwe National Army (ZNA) officers, who on Friday 3 April 2020 assaulted her as she was cooking food on an open fire outside her house.
The 26 year-old Masvondo said she is worried that as a result of the police and army officers’ conduct, who invaded her home, the security officers may have brought the deadly coronavirus to her home as she does not know where they have been to, where they were coming from or whether or not anyone of them carried the deadly virus.
Masvondo and ZLHR, who listed Defence and War Veterans Affairs Minister Oppah Muchinguri-Kashiri, Health and Child Care Minister Obadiah Moyo, Local Government, Rural and Urban Development Minister July Moyo, Home Affairs Minister Kazembe, Commissioner-General of Police Godwin Matanga, Urban Councils Association of Zimbabwe and the National Prosecuting Authority as respondents, argued that the army has no business patrolling the streets and purporting to enforce the National Lockdown regulations and that ZRP members and ZNA officers are not allowed to take the law into their hands and punish people by beating them up and asking them to lie prone on the ground.
The woman protested that the ZRP members and ZNA officers, who also assaulted some people, who reside at her residence using truncheons, were not observing or practicing social distancing guidelines as they were not sitting one-metre apart from each other in a truck in which they were moving around in.
Masvondo and ZLHR also want the High Court to issue an order declaring as unconstitutional the proclamation of the National Lockdown Order by Moyo.
In exercising powers granted to him under the Regulations, Moyo on 28 March 2020 published Statutory Instrument 83 of 2020-the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020 declaring a National Lockdown to last 21 days and which commenced on 30 March 2020 and ending on 19 April 2020.
In their application, ZLHR and Masvondo argued that Moyo can only make Statutory Instruments pursuant to powers delegated to him by the Legislature in the parent Act of Parliament. By sub-delegating to himself the powers to make subsidiary legislation through section 8 of the Public Health (COVID-19 Prevention, Containment and Treatment) Regulations, 2020, S1 77 of 2020, the Health and Child Care Minister had acted ultra vires the Public Health Act and therefore unconstitutionally hence the National Lockdown is null and void. ZLHR and Masvondo argued that the National Lockdown is being enforced following the issuance of an Order that is a nullity.
ZRP members, ZNA officers and some municipal officers, Masvondo and ZLHR said, had committed some acts in the name of enforcing the National Lockdown Order that impinge upon the rights and fundamental freedoms.
In an affidavit accompanying the urgent chamber application, ZLHR Executive Director Roselyn Hanzi said enforcement officers must discharge their mandates according to the law and at all times act within the confines of the law.
Hanzi charged that Moyo failed in his constitutional duty to respect and uphold the Constitution by enacting section 8 of Regulations thereby arrogating to himself the powers to publish certain orders.
Hanzi protested against the confiscation and destruction of some farmers’ produce by law enforcement officers in Mutare early this week, saying such conduct is unlawful as it is not sanctioned by any of the Statutory Instruments that have been promulgated by Moyo.
The human rights lawyer said the National Lockdown regulations do not suggest that fresh farm produce spreads coronavirus and hence the ZRP members’ act of destroying people’s farm produce is criminal and constitutes malicious damage to property.
Hanzi also argued that the ZRP members were breaching the National Lockdown measures by arresting large numbers of people from different households and crowding them in trucks and holding centres, actions which facilitate the passing on of coronavirus by putting them in close proximity of each other without providing them with any forms of protective clothing.
As frontline enforcement officers, ZRP members and municipal officers were putting not only their lives in danger but those of their families and the greater people that they will come into contact with.
Hanzi argued that there are some rights that may not be limited at all as provided in section 86(3), which include the right to human dignity and freedom from torture, or cruel and inhuman and degrading treatment and punishment.
The matter is yet to be set down for hearing.
Zimbabwe Lawyers for Human Rights
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Phone: (+263 8677005347, +263 242 764085/705370/708118
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