Zimbabwe: Public Health Order must not be misused to restrict freedom of expression

Zimbabwe: Public Health Order must not be misused to restrict freedom of expression - Media

ARTICLE 19 is concerned about several prohibitions in the 2020 Public Health Order – the regulation introduced to supress the spread of COVID-19 in the country. While some elements of the Order include important public health measures, others have no discernible nexus to the COVID-19 pandemic or are otherwise overbroad, thus threatening to severely undermine public health and Zimbabwe’s compliance with its international human rights obligations. These are particularly provisions on prohibitions of ‘false reporting’ and restrictions on protests. Given the long history of free speech restrictions in the country, we call on the Ministry to urgently reform these provisions.

 In April 2020, the Minister of Health of Zimbabwe passed the Regulation on management of COVID-19 pandemic – Statutory Instrument 83, Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020 (the Order). The Order includes various government measures to implement a nationwide lockdown introduced in response to the COVID-19 pandemic. It includes orders concerning social distancing, occupancy restrictions on places of business, border closures and ports of entry, prohibitions on hoarding medical supplies, strict restrictions on public gatherings, and punishment for ‘false reporting during national lockdown.’

ARTICLE 19 is concerned about the impact of the Order on the right to freedom of expression and human rights. We raise our concerns in context of a long history of following freedom of expression developments in the country, and in hopes that Zimbabwe’s government will take steps to mitigate the dire loss of life due to COVID-19.

Criminalisation of disinformation with disproportionate penalties

 Part IV, Article 14 of the Order punishes “any person who publishes or communicates false news about any public officer, official or enforcement officer involved with enforcing or implementing the national lockdown.” It also punishes publication on “any private individual” if the publication “has the effect of prejudicing the State’s enforcement of the national lockdown.” The punishment includes a level fourteen fine or up to twenty years imprisonment.

ARTICLE 19 urges the immediate elimination of this provision in its entirety, as it is very problematic on multiple levels. We recall that under international and regional freedom of expression standards, in particular Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), any legislation restricting the right to freedom of expression must meet the test of legality, necessity, and proportionality. More specifically, this requires that the limitation must be:

  • Provided for by law, any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly (requirement of legality);
  • In pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations of others; or the protection of national security or of public order (ordre public), or of public health or morals (requirement of legitimacy);
  • Necessary in a democratic society, requiring the State to demonstrate in a specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat (requirement of necessity).

Provisions of Article 14 of the Order fail to meet these requirements for the following reasons:

  • The provisions do not meet the requirements of legality. This means that any restrictions must be formulated with ‘sufficient precision’ so individuals can generally foresee the consequences of their actions. For instance, international and regional freedom of expression mandates in their 2017 Joint Declaration have stated that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression.” Also, the UN Special Rapporteur on freedom of expression, in his 2020 report to the Human Rights Council – Disease pandemics and the freedom of opinion and expression – warned that “vague prohibitions of disinformation effectively empower government officials with the ability to determine the truthfulness or falsity of content in the public and political domain, in conflict with the requirements of necessity and proportionality under article 19 (3).”

This is the case of provisions of Article 14 of the Order. There is no clarity at all as to what is meant by ‘false.’ Further, the scope of the provision for punishment of publication “prejudicing” the Zimbabwean government’s enforcement of the lockdown is tremendously overbroad. There is no clarity as to what it means to ‘prejudice’ enforcement efforts, and as such the use of this is potentially limitless.

  • The falsity of information is not a legitimate basis for restricting expression under international human rights law. As four special mandates on freedom of expression cautioned in their 2017 Joint Declaration, an important point of principle remains that “the human right to impart information is not limited to ‘correct statements’, [and] that the right also protects information and ideas that may shock, offend or disturb.” We also recall that – the label of ‘fake news’ or ‘false information’ is increasingly being used by persons in positions of power to denigrate and intimidate the media and independent voices, increasing the risk of such persons to threats of violence, and undermining public trust in the media.

The scope of the Order suggests that the basis is promoting public health and addressing the threat of COVID-19. However, in practice the Order prevents criticism of government or public officials. This itself is not a legitimate basis for restrictions on expression.

  • It is not clear what pressing social need this offence responds to and whether such restriction is necessary in a democratic society. In a democratic society, intentionally creating or sharing ‘false information’ may be in the public interest. For example, artists may engage in satire and parody, knowingly using imitation and fabrication to convey their opinions and ideas about police conduct during lockdown. Or a blogger on social media may re-post a “false” statement about the police in the context of sharing to their audience the fact that they were made. We also recall that in his report to the Human Rights Council on protection of freedom of expression in light of COVID-19, the Special Rapporteur on freedom of expression stated in response to false information laws: “Measures to combat disinformation must never prevent journalists and media actors from carrying out their work or lead to content being unduly blocked on the Internet. Those countries which have introduced restrictions that do not meet these standards must repeal them as a matter of urgency.”
  • Moreover, the penalties provided – where it is not necessary to even prove a particular harm to a legitimate government interest of protecting public health – is grossly disproportionate. Twenty years’ imprisonment is a staggering level of punishment for an offense surrounding mere publication. Any term of imprisonment or criminal sanction on the basis of publication of ‘false information’ would be a disproportionate restriction on freedom of expression and have a severe chilling effect on publication. Any limitations on the flow of information must adhere to the tripartite test of permissible restrictions under international law; making the Government of Zimbabwe the decider of what information is “true” or “false” is wholly incompatible with the guarantees of the ICCPR.

Implementation of the false information provisions of the Order

We are deeply concerned that the problematic provisions of the Order are being implemented as part of a broader effort to restrict so-called ‘false information’ to censorious ends with implications beyond the COVID-19 pandemic.

Such abuses of false information laws have already occurred. For example, one prominent journalist, Hopewell Chin’ono, along with opposition officials were jailed in January for tweeting that authorities were putting prisoners and jail guards at risk of COVID-19. Members of government have also gone on the record calling for punishment of journalists out of purely personal motivation. Further, Parliamentarian Temba Mliswa has threatened to punish journalists for writing about a breakup with his girlfriend, using the affair as a pretext to pass legislation to “move a motion in parliament against journalists to be given five years … because at all you cannot rule by the stroke of the pen and lie.” These uses plainly have nothing to do with limiting the spread of COVID-19. The treatment of journalists covering COVID-19 is part of an alarming trend of repression of freedom of expression and a systematic crackdown on opposition parties and protesters particularly on social media.

Beyond this, ARTICLE 19 is also concerned that on 15 May 2020, Zimbabwe gazetted the Cyber Security and Data Protection Bill, which contains numerous provisions that undermine freedom of expression and freedom of the media, including false information provisions and criminal defamation. For example, Section 164C of the Bill criminalises the distribution of false information online, which is punishable by up to five years’ imprisonment. Section 164 prohibits messages distributed via a computer to incite violence, and the Bill also imposes penalties for sending threatening messages. Finally, the Bill punishes the distribution of “racist or xenophobic material” as well as “language that tends to lower the reputation or feelings of persons,” with up to ten years imprisonment.

In light of continued statements by the government of Zimbabwe, we anticipate that, left unaddressed, the use of ‘false information’ or ‘fake news’ laws to stifle dissent will only get worse.

Addressing these concerns and bringing Zimbabwe into compliance with its international legal obligations is urgent. Zimbabwe has already been severely impacted by a resurgence of COVID-19 since the winter, with several Cabinet ministers losing their lives to the disease. The spike of the pandemic has raised important public policy questions and debates regarding Zimbabwe’s healthcare system. The emphasis at present must be to promote, rather than restrict, expression.

All in all, Article 14 of the Order fails to meet the requirements of Article 19(3) of the ICCPR and should be eliminated.

Interference with the right to protest

 Moreover, the Order also severely restricts the right to protest.

Article 5(1) of the Order provides that there can be “no gathering of more than two individuals in any public place” subject to a handful of exceptions outlined in sub-articles 5(1)(a)-(g), including funeral services, healthcare, and an “essential service” which can be declared to be “any other service declared by the Minister, by General Notice” pursuant to Article 2. Violation of these provisions (i.e., gatherings of more than two people) are subject to harsh penalties by enforcement officers. Article 5(2) grants sweeping authority to officers to not only “order the persons at the gathering … to disperse immediately” but also to “take appropriate action, including … arrest and detention.” Per Article 5(3), the penalty for violations of the public gathering rule are up to one year.

ARTICLE 19 recalls that under the ICCPR restrictions on the right to protest must meet the test of legality, necessity, and proportionality. The blanket and unevenly applied restrictions of the Order, and wide discretion to limit even small gatherings, fail this tripartite test:

  • The restrictions fail the test of legality. The scope of what types of gathering may be permissible as part of an “essential service” are subject to change at will by the Minister under Article 2 of the Order. Further, since enforcement officers have such a wide range of permitted responses from ordering dispersal to making arrests (or simply doing nothing), this provides significant latitude and no legal certainty as to what gatherings may or may not be allowed or disallowed. It also leads to potential abuse in enforcement; i.e. for a gathering of four people holding protest signs to lead to arrests, while a gathering of dozens for a different purpose to be ignored.
  • While “protection of public health” is enumerated as a legitimate basis for restrictions on the right of assembly guaranteed by Article 21 of the ICCPR, the drafting and contradictory rules of Article 5 of the Order casts serious doubt about whether the provision is actually designed to promote public health in practice. While gatherings of more than two people are prohibited with threat of imprisonment, specific allowances are made for gatherings vastly larger than two. For instance, Article 5(1)(b) explicitly protects gatherings of up to fifty people for funerals and as amended in 5(1)(j) allows for large gatherings at indoor places of worship with protective gear.
  • Article 5(3), which provides for criminal penalties for small public gatherings, also fails the test of necessity and proportionality. It is unclear how detaining individuals in jail cells if they do not disperse mitigates the COVID-19 risk; if anything, these measures increase proximity and close contact, and would appear to only facilitate the further spread of the disease.

The powers provided under Article 5 of the Order are particularly concerning as the Zimbabwean government has used COVID-19 restrictions as a pretext to shut down anti-government protests. In July 2020, the government deployed heavy law enforcement and military forces to make mass arrests of dissenters expressing grievances about government handling of the pandemic. These restrictions have led to campaigns of ‘one-person demonstrations’ where individuals share photos of themselves in protective equipment, holding signs individually with the #ZimbabweanLivesMatter hashtag.

In light of the COVID-19 pandemic, there may be need for reasonable restrictions on public gatherings in order to maintain social distancing measures and limit the spread of the disease. However, these restrictions must be proportionate and consistently applied in a way that satisfies the three-part test under ICCPR Article 21.

Sweeping search powers

Article 12 of the Order prohibits hoarding of food and resources, granting a broad authority to enforcement officers to secure arrest warrants to search private property to check if families have excess food on grounds of “reasonable suspicion” under Article 12(4). This is a disproportionate granting of emergency power that can easily be used for improper purposes.