This is the second part of a series of articles on rule of law issues surrounding the Swaziland Government’s response to COVID-19. In part one I argued that the Prime Minister’s March 17, 2020 declaration of COVID-19 as a national emergency was unlawful because he acted under the dictation of the King and secondly he conflated a national emergency with a state of emergency. In this contribution, I focus on the legality of the April 26, 2020 pronouncement by the National Commissioner of Police, William Dlamini.
On Sunday April 26, 2020 the National Commissioner of Police called a news conference. At this conference he informed the nation that travels into and out of Manzini would be strictly restricted with effect from the following day. The reason the Commissioner gave for his edict was that it was clear that Manzini was the epicentre for COVID-19.
The background of the Commissioner’s announcement was that on March 27 the Prime Minister Ambrose Dlamini had announced a partial shutdown and his Deputy Themba Masuku had issued the Coronavirus (COVID-19) Regulations of 2020 (“the Regulations”). The partial lockdown had two primary objectives. The first was to limit the spread of COVID-19 and the second was to prevent harming the economy by allowing services designated as essential to continue functioning during the partial lockdown.
The intention of the Regulations is to facilitate the achievement of the twin objectives of the lockdown. On April 15 the partial lockdown was relaxed by allowing specified low-risk and non-essential businesses to resume operations under strict hygiene conditions. At that time there were 16 confirmed cases of COVID 19. Seven days later the number of infections had doubled to 32. This development forced the Prime Minister to make a humbling U-turn by moving from a relaxed partial lockdown back to a partial lockdown with effect from April 24.
The following day the country recorded 16 new COVID 19 cases bringing the total to 56. This was the biggest daily increase in the number of confirmed cases. Out of the 56 cases, 35 were from the Manzini region. The National Commissioner made his “decree” against this backdrop.
Regulation 11 empowers the Senior Medical Officer-Public Health in collaboration with the National Emergency Task Force on COVID-19 to take containment measures to prevent the spread of the disease including “sealing off that geographical area” and “banning entry and exit of the population from the containment area”.
Regulation 32 sanctions the Prime Minister, Cabinet Ministers and other named officers to issue guidelines to address, prevent and combat the spread of COVID-19. Regulation 32(6) is specific to the National Commissioner. He is empowered to issue guidelines to address, prevent and combat the spread of the disease in all police stations, police posts and holding cells.
A decision taken by a public officer must not only be lawful but it must be clear. Members of the public must know with reasonable certainty how they are expected to act in the light of the decision.
The National Commissioner purported to prevent the spread of COVID-19 by banning the entry and exit of people into Manzini. The National Commissioner had no power to restrict the freedom of movement of people in the manner he did. That power belongs to the Senior Medical Officer–Public Health who is a doctor in the employ of the Ministry of Health. The Commissioner’s “decree” was therefore illegal. His administrative authority, in as far as COVID-19 is concerned, is limited to police stations, police posts and holding cells.
The Manzini region includes the municipal area of Manzini, peri-urban areas and rural areas. The National Commissioner’s edict did not, and could not, specify which part of Manzini he was referring to because as of April 26 the Ministry of Health had not stated the geographic areas in Manzini where COVID-19 was prevalent. The Commissioner’s pronouncement was therefore void for lack of certainty.
NB: Litchfield is an Advocate based in South Africa