Boma ni Bowman? The Plight of the Rule of law in Zambia during COVID-19

By Felicity Kayumba Kalunga

Zambia reported its first two COVID-19 positive cases on 18th March 2020. Ahead of this development, the country had taken proactive measures based on the global trends by issuing two statutory instruments (SI), under the Public Health Act, which were published in the Government Gazette on 13th March 2020. The Act provides for the prevention and suppression of disease and generally regulates all matters related to public health in Zambia. It contains provisions for dealing with diseases and empowers the Minister of Health to make regulations. The Act uses the terms “approved” and “prescribed” to describe actions that may be undertaken under its authority and are defined as “respectively approved or prescribed by the Minister or the Board or by the appointed officers or by the regulations framed under this Act, as the case may be.”

In response to the COVID-19 pandemic, two statutory instruments were issued. The first, SI No. 21 of 2020 declared the Coronavirus Disease 2019 as a notifiable infectious disease pursuant to section 9 of the Public Health Act. The second, SI No. 22 of 2020, set out measures aimed at controlling the spread of COVID-19. A clear example is the restriction on free movement of people suffering from, or suspected to be suffering from, or who have been in contact with a quarantined person suffering from, COVID-19. Another example is the limitation of public gatherings exceeding five people who are not family members in an infected area without the permission of a local authority or “Medical Officer of Health”. The last example is restriction of movement of people in and out of an infected area without the permission of an authorised officer. The statutory instrument defines “an infected area” as “a part of the Republic or any conveyance declared as being or appearing to be threatened by the epidemic of COVID-19.”

All the measures contained in the cited statutory instrument can only be invoked when the urgency level has reached alert level. The schedule to the SI describes “alert level” as “conveying the highest level of importance and warranting immediate action or attention.” According to the statutory instrument, a person who fails to comply with the “direction, prohibition or restriction of an authorised officer or otherwise contravenes (the) regulations” of the SI is guilty of an offence and liable, upon conviction, to pay a fine not exceeding 2,500 penalty units (K750.00) or imprisonment for a maximum period of six months or to both a fine and imprisonment. The term “an authorised officer” is defined as “a Medical Officer of Health, Health Inspector, District Medical Officer, Environmental Health Officer, or a suitably qualified person authorised in writing by the Minister (of Health) or a local authority with approval of the Minister.”

Following the announcement of the first COVID-19 positive cases on 18th March 2018, the Minister of Health announced that all schools would close indefinitely on 20th March 2020. Further direction was given for the public to observe social distancing and health guidelines given through regular updates to the press.

The President, who has only made one public appearance since the outbreak of COVID-19 – the 30th March 2020 visit to the north of Zambia, which is affected by floods – has only addressed the nation twice through pre-recorded televised messages. The first presidential address was made on 25th March 2020. In that address, the President issued directives that were to take effect at midnight on 26th March 2020. Among the directives announced included restriction of public meetings to no more than 50 people subject to them complying with public health authority guidelines and the closure of bars, gyms, and restriction of operation of restaurants to take away basis. These measures were to be observed during the initial 14 days’ period, subject to constant review, depending on how the epidemic evolved.

The second presidential address was held on 9th April 2020 at 15:30 hours, two hours after its scheduled time, with no explanation as to what caused such a long delay. In this address, the President extended the measures announced on 25th March 2020 for a further 14 days and emphasised the importance of compliance. Following the President’s second address, the Minister of Health announced the death of a patient from COVID-19, which patient was not amongst the publicly announced statistics from the Ministry. With these changed circumstances, the President, on 14th April 2020, this time via a written post on his Official Facebook page, announced that Kafue has been declared an infected area and that people should not move in and out of the town for a day to facilitate massive testing. The Minister of Health confirmed this message during his 25th COVID-19 media update.

With a few exceptions, such as the quarantine measures for patients and those suspected of suffering from COVID-19 and restrictions on trade in unsanitary conditions, the other measures that have been undertaken are not backed by any legal instrument to facilitate their enforcement. Among these measures that have been taken so far and without the backing of the law include the imposition of restrictions on movements of people and the nationwide prohibition of public gatherings of more than 50 people. The Minister of Health has claimed that these restrictions fall within the provisions of SI No. 22 of 2020. This is however not true for three reasons. First, none of the two statutory instruments empowers the President to issue directives to the general public. Secondly, the Minister of Health, being the correct authority under the Public Health Act, is supposed to act through issuance of statutory instruments and orders as provided by the guiding legislation. Thirdly, the Public Health Act does not authorise the Minister of Health to issue regulations that have the effect of derogating or suspending fundamental rights of all citizens, which rights are protected by the Constitution through the Bill of Rights. Human rights can only be limited or suspended in accordance with the strict standards set by the Constitution itself. The actions so far taken fall short of the minimum standards expected by constitutionalism and the rule of law in Zambia.

The rule of law supports the equality of all citizens before the law. It also protects citizens from arbitrary use of power by despotic or authoritarian governments by demanding that law must support all governmental actions. Another important aspect of the rule of law is that laws should be enforceable through established judicial institutions to which all citizens are subjected. It therefore protects citizens from arbitrariness through access to justice.

In terms of the Constitution of Zambia, the rule of law is expressed through the supremacy of the Constitution which binds all persons, including state organs and state institutions, respect for human rights and the independence of the Judiciary. The rule of law also protects the quality of the law, which must be written, clear, general, and predictable. A great example of this point is the right to secure protection of the law under Article 18 (8) which provides that “A person shall not be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law.”

In an open letter to President Edgar Lungu dated 26th March 2020, a mere three days after the first presidential address, prominent constitutional lawyer John Sangwa magnanimously advised the President to uphold the rule of law in implementing measures aimed at addressing the COVID-19 pandemic. Sangwa observed that “the measures introduced by (the) Government under the Public Health Act are woefully inadequate to contain the ravages of the virus” and recommended the declaration of a state of emergency and the issuance of comprehensive regulations which would address matters such as restriction of movement of people and protection of businesses and employees during the period.

On 27th March 2020, Chapter One Foundation, a local non-governmental organisation, issued a public statement that presented an alternative approach, urging the President to declare a “state of disaster” pursuant to the provisions of the Disaster Management Act of 2010. According to Chapter One Foundation, this step would facilitate a “comprehensive framework for the government to take the necessary measures to address the Covid-19 scourge without unduly compromising on human rights unnecessarily.” Although inadequate to implement measures requiring the suspension of the Bill of Rights, the proposal offers a useful multisectoral approach compared to the purely medical approach in the Public Health Act.

Both these proposals would have provided a platform for legally enforceable measures. This well-founded advice, however, fell on deaf ears and government officials have proceeded to take measures to enforce directives that have no legal backing and are therefore illegal. Suffice to mention, the most overzealous actions are disturbingly those orchestrated by Lusaka Province Minister, Bowman Lusambo, who, in the company of Zambia Police officers, has taken to what he recently described as “successful Stay Home night operations.” These illegal moves typically involve arresting people alleged to be abrogating the presidential directives accompanied with physical beating of suspects. Lusambo has graciously documented evidence of these violations by posting on social media graphic images of violent attacks on unarmed citizens.

Not to be outsmarted, the Zambia Police Service Spokesperson, Esther Mwaata Katongo, in an interview aired on Diamond TV on 31st March 2020, publicly warned that police officers would whip people who “go out to drink” in breach of the presidential directives. The police spokesperson justified the use of what she described as “gazetted whips” on suspects on account of low staffing levels in the police service. Katongo also confirmed that people who would be arrested would be charged pursuant to the regulations under SI No. 22. Lastly, Katongo, on behalf of the Zambia Police, also attempted but failed to define the presidential directives as being sub regulations under the statutory instruments.

These incidences of police brutality have sparked outrage and public criticism from various stakeholders including the Human Rights Commission which, on 12th April 2020, issued a statement condemning the violence by police officers and emphasised the importance of the rule of law in addressing the COVID-19 pandemic. The Commission spokesperson, Mweelwa Muleya, categorically stated that “neither the Constitution nor human rights have been suspended because of Coronavirus in Zambia.” The statement also condemned the use of corporal punishment, which constitutes torture and other inhuman and degrading treatment that is outlawed in Zambia. The Law Association of Zambia on 15th April 2020 also issued a statement condemning the beatings.

Without hesitation, Lusambo, in an audio interview with a presenter from Hot FM radio that has since gone viral, dismissed the legally founded Human Rights Commission’s statement with impunity and arrogance. The Inspector General of Police, Kakoma Kanganja, in statement issued on 13th April 2019 responded by guiding police officers to “observe the guidelines outlined in relevant pieces of legislation as well as Police Instructions which guide them on how and when to apply minimum force,” but fell short of condemning the use of “gazetted whips,” whatever they might be.

Whilst all this is happening, political and constitutional institutions that ordinarily provide checks on executive excesses have been silenced either through implementation of COVID-19 measures or despotic actions of the Executive. The voice of the Attorney General, the chief legal advisor to the Government, is only heard by its clear silence. Many civil society organisations have suspended their operations in compliance with the social distancing measures that have restricted their area of influence to non-contact means.

Government has not shied from using COVD-19 as a scapegoat to suppress independent media. On 17th March 2020, Minister of Information and Broadcasting Services and Chief Government Spokesperson, Dora Siliya, unlawfully banned Prime Television from covering government events on grounds of their alleged refusal to assist Government in disseminating COVID-19 messages free of charge. This is an allegation over which the Prime Television proprietor publicly apologised but to no avail. Based on this unlawful Government act, Top Star Communications company limited and MultiChoice Zambia limited, both of which Government has stakes in, prematurely terminated their service agreement with Prime TV, a matter currently being challenged in the courts of law.

On 9th April 2020, the Independent Broadcasting Authority (IBA), in unexplained circumstances, cancelled Prime Television’s broadcasting licence without the basic tenet of being afforded an opportunity to be heard before any adverse action. In its letter communicating the cancellation, the IBA merely stated that the broadcasting licence had been cancelled in “public interest”. The actual “public” in whose interest the IBA acted is yet to be known.

Meanwhile, citizens have continued being threatened in their exercise of freedom of expression through mass messages sent by the Zambia Information and Telecommunications Authority (ZICTA) to the effect that “publication or circulation of false information which may cause discontent is a criminal offence.” This is notwithstanding the fact that the law that creates the subject offence was declared unconstitutional by the High Court in 2014 in the case of MacDonnald Chipenzi and others v The People. The coincidence of all these unconstitutional happenings appears deliberate.

The National Assembly was one of the first institutions to suspend its operations, having adjourned indefinitely on 18th March 2020 on account of COVID-19. This has created a further challenge in providing necessary legislative changes. In addition, some proposed executive measures that require Parliamentary approval have been suspended. For instance, a declaration of a state of emergency would require the approval of the National Assembly within seven days of the proclamation by the President.

The Judiciary has also scaled down its operations by postponing sessions of the Supreme Court, Constitutional Court and Court of Appeal, which were scheduled to commence on the 7th, 14th and 21st April 2020, respectively. The High Court has, since 6th April 2020, indefinitely suspended its criminal sessions in various districts and so have hearing of all civil matters, except for one judge attending to urgent matters such as injunctions and stay of executions. Criminal proceedings before the Subordinate Courts, which would ordinarily hear allegations under SI No. 22, have continued under precautionary guidelines. However, Subordinate Courts have no power to hear allegations of human rights violations.

Several well-meaning citizens such as civic activist Laura Miti, human rights campaigner Linda Kasonde, prominent musician Chama Fumba, alias Pilato, and leading public intellectual Sishuwa Sishuwa have all drawn public attention to the shrinking democratic space and the total disregard for the rule of law in Zambia. Unfortunately, the current COVID crisis has undermined effective responses to these issues and provided cover for authoritarian abuses. The ongoing violations of the rule of law in Zambia suggest that the country is fast sliding into a despotic state, under the guise of containing the COVID-19 pandemic. The “suspension of human rights approach” that has been taken is not only detrimental to democracy but also threatens the chances of the COVID-19 response measures succeeding. It must be emphasised that both eventualities are equally disastrous for the country.

A recent statement by the Director General of the International Development Law Organisation (IDLO), Jan Beagle, published on 27th March 2020 entitled “A Rule Of Law Based Response To The COVID-19 Pandemic’ emphasised the importance of good governance and rule of law to managing the COVID-19 crisis and pledged, in collaboration with its member parties and the United nations, “to support rule and law and justice and find innovative ways to work together in overcoming COVID-19 while moving purposefully toward more resilient, peaceful, just and inclusive societies.” The statement referenced the 2017 report by the World Health Organisation entitled “Advancing the Right to Health: The Vital Role of Law” for useful guidelines on enabling speedy and effective public health responses to the pandemic.

It would be folly for the Zambian Government to ignore these overwhelming existing frameworks and insist on the despotic path it has since embarked on. The Boma ni Bowman (Government is Bowman) approach to containing COVID-19 encourages criminal impunity. Its adverse effects will likely become a more deadly and lasting pandemic that Zambia would have to grapple with years after winning the current fight against COVID-19. We must stop both – the COVID-19 pandemic and the Bowman Lusambo epidemic.

Felicity Kayumba Kalunga is a lawyer and Lecturer in Law at the University of Zambia.