HomeOpinion & AnalysisLockdown exemption letters aren’t a legal requirement

Lockdown exemption letters aren’t a legal requirement

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BY NYAMUKONDIWA FIDELITY

WITH all due respect, movement exemption letters often demanded by security officers at roadblocks and checkpoints are not a legal requirement. Put differently, there is no law in Zimbabwe mandating a person to produce the so-called exemption letter to a police officer at a roadblock.

A few days ago, I was stopped at a police roadblock and a certain police officer ordered me to produce a “movement exemption letter”. I produced one that was stamped at a local police station.

After a thorough examination of the document, the officer informed me that I could not pass through because the “letter” I was using had expired in 2020. To avoid arguing, I just pleaded with her and fortunately, she allowed me to pass through.

The purpose of the national lockdown and curfew is to curb the spread of the COVID-19 pandemic which has so far infected more than 34 000 Zimbabweans and claimed close to 1 400 lives. Had it not been for the strict enforcement of lockdown regulations, the numbers could have been worse.

It is, therefore, not the object of this editorial to jeopardise nor obstruct the proper enforcement of lockdown regulations. It simply seeks to set the record straight in so far as the law regarding lockdown exemptions is concerned.

For starters, there are three arms of the government, the Legislature, the  Executive and the Judiciary. The Legislature consisting of Parliament and the President is the organ responsible for making laws.

Parliament may, however, assign particular ministers to make Statutory Instruments (SIs). For it to have a force of law, an SI must be published in the Government gazette.

Parliament, through the Public Health Act, Chapter 15:17, delegated to the Health and Child Care minister, to enact SIs on public health matters. It is on this background that several SIs have been made and gazetted to restrict movement of people during the national lockdown.

The Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Consolidation and Amendment) Order, 2020, better known as SI 200 of 2020 and also referred to as the principal order consolidates the several lockdown orders that were made in the year 2020. All the basic Lockdown dos and don’ts are contained therein.

On January 2 2021, SI 10 of 2021 was gazetted to make amendments to the principal order. The ongoing lockdown and curfew measures are in terms of SI 200 of 2020 as amended by SI 42 of 2021 gazetted on February 15 2021.

The principal order confines all persons in their homes during the lockdown period.

It, however, mentions several classes of persons exempted from confinement. Exempted persons are allowed to leave their homes for specified purposes.

Nowhere in the principal order nor in any other lockdown SI is it stated that exempted persons must be in possession of the so-called movement exemption letters. All that is required is to wear a face mask and observe the social distancing rule in public places.

The principal order provides that if found outside their homes by an enforcement officer, those found must prove to the satisfaction of the enforcement officer that they are exempted. The law does not mandate an exempted person to possess a letter stamped at a police station or at some government office.

It is an open secret that the Zimbabwe Republic Police (ZRP) has been and is still issuing  movement exemption letters. That these letters are not backed by any law is also an open secret. Besides a letter, there are several other ways of proving to an enforcement officer that one is legally permitted to be outside his/her home.

The way in which Zimbabweans have been proving to police officers at police stations that they are covered by statutory exceptions is the same way they should be allowed to prove to the satisfaction of police officers at roadblocks and checkpoints.

The police is constitutionally mandated to enforce the law and not to make it. Two days after SI 20 of 2021 was gazetted, the ZRP issued an embarrassing Press statement setting out what it termed  ‘movement guidelines’ to be adhered to by essential service providers. Among other requirements, the Press statement directed farmers, sole traders and food retailers to obtain exemption letters from police stations. In so doing, the ZRP wore the Legislature’s jacket.

Probably after realising the legal error, the ZRP made a “U” turn and withdrew the earlier statement. In the latest and “corrected” statement, national police spokesperson Assistant Commissioner Paul Nyathi highlighted that the exemption letters were now to be issued by the Ministry of Industry and Commerce.

To add more confusion, a Press statement purportedly from “the government” surfaced and circulated on social media later the same day. It stated that companies should “comply with the statutory instrument and … give their employees individual letters which must be accompanied by the exemption letter  from the respective parent ministry.”

There goes the problem. Neither SI 10 of 2020 nor any other lockdown SI mandates any government ministry to issue exemption letters. It goes without saying that the issuance of exemption letters which has technically been made mandatory is not supported by any law. Issuance of these letters is only contained in Press statements. It is important at this stage to underline that a Press statement, regardless of who makes it, has no legal force.

It does not override legal requirements set out in a gazetted SI.

This explains why an SI has  always been gazetted immediately after the President or acting President announces new or amended lockdown measures.  As hinted earlier on, the current  law governing lockdown regulations is SI 200 of 2020 as amended by SI 10 of 2021 and SI42 of 2021.

Neither the ZRP nor any government department should ‘make laws’. through Press statements. In a country in which the rule of law is observed, the law-making powers are a preserve of the Legislature. Media statements should only serve as public awareness tools.

For convenience purposes, employers in the essential services sector should be encouraged to secure ‘movement exemption letters’ for their employees. Ordinary citizens willing to travel for exceptional reasons should also make efforts to obtain exemption letters. The letters make it easy to prove to the satisfaction of enforcement officers that the law permits them to travel.

Whilst exemption letters might be important and convenient for both citizens and enforcement officers, it must be emphasised that they are not a legal requirement. Their issuance is not backed by any law.  It is, therefore, a misdirection if not abuse of office, for a police officer to demand an exemption letter at a roadblock or police checkpoint.

It does not override legal requirements set out in a gazetted SI.

This explains why an SI has  always been gazetted immediately after the President or acting President announces new or amended lockdown measures.  As hinted earlier on, the current  law governing lockdown regulations is SI 200 of 2020 as amended by SI 10 of 2021 and SI42 of 2021.

Neither the ZRP nor any government department should ‘make laws’. through Press statements. In a country in which the rule of law is observed, the law-making powers are a preserve of the Legislature. Media statements should only serve as public awareness tools.

For convenience purposes, employers in the essential services sector should be encouraged to secure ‘movement exemption letters’ for their employees. Ordinary citizens willing to travel for exceptional reasons should also make efforts to obtain exemption letters. The letters make it easy to prove to the satisfaction of enforcement officers that the law permits them to travel.

Whilst exemption letters might be important and convenient for both citizens and enforcement officers, it must be emphasised that they are not a legal requirement. Their issuance is not backed by any law.  It is, therefore, a misdirection if not abuse of office, for a police officer to demand an exemption letter at a roadblock or police checkpoint.

 Nyamukondiwa Fidelicy is a former public prosecutor. He writes here in his personal capacity.

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