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COVID-19 REGULATIONS CHALLENGED

14/05/2020 06:02:00 BY MBONGISENI NDZIMANDZE

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MBABANE - The immunity against liability of law enforcement officers and medical practitioners as per the COVID-19 regulations has been put under scrutiny.
The Coronavirus (COVID-19) Regulations, 2020 enacted under the Disaster Management Act 1 of 2006, Regulation 30 provides for immunity against liability.

The regulation provides as follows; “No liability or suit shall lie against an enforcement officer or medical practitioner or member of the National Emergency Management Task Force for anything done in good faith under these regulations.”

Immunity

Renowned human rights lawyer Sipho Gumedze said the immunity clause did not qualify the person who should enjoy the immunity.

“The regulation as it stands can result in a situation where the law enforcement agents; could without any reasonable justification, use force on citizens and leave the citizens with permanent scars, in a situation where those citizens will have no recourse to check through the courts the justification of the use of such force,” said the human rights lawyer.

He further stated that, a medical officer who left a patient to die because he/she was acting in good faith by not offering medical attention to the patient because he/she suspected the patient to be positive with COVID-19 and that medical officer did such because he/she complained of lack of PPE would be immune from liability.

According to Gumedze, the medical officer’s actions would not be subjected to scrutiny as to whether he/she acted reasonably under the circumstances. “Ordinarily; legislation will clothe with immunity a reasonable person acting in good faith. So for the person to enjoy the immunity, that person will be weighed through the standard of a reasonable person.

The reasonable person acts sensibly, does things without delay, and takes proper but not excessive precautions. Unfortunately, the present regulations will clothe with immunity even a person that does not act reasonably,” said Gumedze. He further highlighted that; good faith not measured at the standard of a reasonable person did not protect members of the public. He said all power that was bestowed upon any person required checks and balances.

Abuse

Gumedze said the moment you removed checks and balances, there was a likelihood of abuse.
Some lawyers described the clause as unconstitutional and one that was meant to give the medical officers and the security personnel powers to ill-treat and abuse citizens willy-nilly.

Sought for comment, Attorney General (AG) Sifiso Mashampu Khumalo said:” Everything is still done under the confines of the COVID- 19 regulations, applicable guidelines and laws of the land. The frontliners work within the law without fear to save the nation.”

The AG further stated that there was no room for harassment. The lawyers for human rights also recently urged security personnel to be extra cautious when dealing with members of the public and businesspeople during the partial lockdown, to avoid a situation where the State will find itself incurring lawsuits.

This, after there were reports that some of the law enforcers deployed in the four regions of the country were allegedly harassing and assaulting members of the public and businesspeople to enforce the regulations of the lockdown.

The lawyers stated that :“It cannot be over-emphasised that, the security forces as they carry out their duties to ensure full compliance ought to take into consideration that, citizens of this country still have rights.”

They further pointed out that Section 38 of the Constitution of the Kingdom of Eswatini Act, 2005 provided as follows: “Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-(e) freedom from torture, cruel, inhuman or degrading treatment or punishment.”

The security personnel deployed by government are from the Royal Eswatini Police Service (REPS), His Majesty’s Correctional Services (HMCS) and Umbutfo Eswatini Defence Force (UEDF).