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» » » Legal Perspectives: Health rights amid COVID-19

Fidelicy Nyamukondiwa

Every person including the state and all government institutions must respect, protect, promote and fulfil rights and freedoms set out in the Declaration of Rights. The right to health care is a fundamental human right set out in the Constitution. Even the sacred right to life is dependent upon the right to health. Health rights must therefore be respected, protected, promoted and fulfilled at all costs. This editorial is a reflection on the realisation of the  right to health care in Zimbabwe in view of the horrific Coronavirus disease first identified in 2019 (COVID-19).
COVID -19 was declared a global pandemic by World Health Organisation (WHO) on the 11th of March 2020.  So far, this pandemic has reportedly killed more than 16 000 people and infected more than 380 000 worldwide. At the time of this publication Zimbabwe reportedly had 8 confirmed cases and one death.

National Objectives
Chapter 2 of the Constitution has what are known as national objectives. Commenting on the purpose of these state objectives, Dr Admark Moyo, a constitutional law expert elaborated that “national objectives are a crucial yardstick upon which the state can be held accountable in terms of compliance with its human rights obligations towards the citizens”.
The provision of health services is one of the national objectives set out in the Constitution. Section 29 of the Constitution states that “The State must take all practical measures to ensure the provision of basic, accessible and adequate health services throughout Zimbabwe”.
The Constitution also mandates the state to take preventive measures against the spread of diseases. Section 29 obligates the state to embark on education and public awareness programmes to prevent the spread of diseases. These practical measures must be taken within the limits of the state’s available resources.  It therefore goes without saying that the government of Zimbabwe must within the limits of available resources, take practical measures to prevent the spread of COVID-19.  Limits of available resources’ concept will be explained shortly.

The Right to health care.
Section 76 of the Constitution provides that every citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services. It also states that no person may be refused emergency medical treatment in any health-care institution. What is basic health care services in view of the COVID-19 pandemic? Provision of sanitizers and protective masks to every Zimbabwean citizen seem be basic health care.  The Constitution also mandates the state to ensure progressive realisation of the right to health care within the limits of available resources.

Healthy environment rights
Section 73 of the Constitution provides for environmental rights. It states that every person has the right to an environment that is not harmful to their health or well-being. The Oxford dictionary defines the term harmful as ‘causing or likely to cause harm’. It is common knowledge that killer COVID-19 is now within the borders of Zimbabwe. Is our environment COVID-19 harmless? How is the right to a Corona safe environment realised? What are the state’s obligations? Section 73(2) provides that the State must take reasonable legislative and other measures, ‘within the limits of the resources’ available to it.]

Within the limits of available resources
Can the state be held liable for failure to fulfil constitutional obligations regarding human rights? Commenting on the realisation of the right to water, Chantelle Moyo, an environmentalist asserts that “...even though immediate obligations for the State exist in the protection of the right…, it will not be found liable for the violation of the right where it fails to meet its obligations due to resource limitations.” The same can be said in the context of the realisation of the right to health care services.
Section 9 of the Constitution mandates the state to ensure that all institutions and agencies of government at every level are provided with adequate resources and facilities to enable them to carry out their functions conscientiously, fairly, honestly and efficiently. This means that in the wake of COVID-19, the government must ensure that the health ministry, all hospitals, clinics, isolation centers and any other health institutions are adequately financed and resourced to guarantee effectiveness.
Wilkins Infectious Diseases Hospital was designated as the main isolation centre for COVID-19 in Zimbabwe.  On March 20, 2020, Zimbabwe Independent reported that Wilkins hospital had run out of protective clothing. After the death of journalist Zororo Makamba on March 23, 2020,, reported that the room at Wilkins in which the now deceased was “had no water, no ventilators and not even a power socket”.  On 24 march 2020, Herald reported that a Chinese company had invested more than US$ 500 000 towards the upgrading of Wilkins hospital and that US$150 000 had been additionally put in place towards the procurement of medical equipment which include ventilators test kits and protective clothing.

Legislative measures 
The Constitution mandates the state to take “reasonable legislative measures” to ensure realisation of health rights. On 23 March 2020, Statutory Instruments 76 and 77 of 2020 were gazetted. SI 76 of 2020 declared COVID -19 a state disaster. SI 77 of 2020 sets out preventive, containment and treatment regulations for COVID-19. It prohibits public gatherings and provides for quarantining, isolation, compulsory testing and detention among other measures to contain the pandemic.
SI 77 of 2020 was followed by the promulgation of SI 83 OF 2020, the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order on 28 March 2020. This SI regularizes the 21 days national lockdown announced by President ED Mnangagwa on 27 March 2020. The lockdown order limits citizens’ freedom of movement. It criminalises inter alia, hindering enforcement officers and failing to comply with enforcement officers’ directives.

Every Zimbabwean citizen and resident has a constitutionally protected right to have access to basic health care services. Every person has a right to a COVID-19 free environment. All health care institutions must be ready to provide emergency treatment for COVID-19.  The state has an obligation to ensure health rights are progressively realised. Failure to do so is a clear human right violation. A close reading of the Constitution however entails that the government cannot be said to have violated the right to health if it fails to fulfil its obligations due to resource limitations. May the Lord Almighty be with us!
Fidelicy Nyamukondiwa writes here his personal capacity. Contactable on 0785827154

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