Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe

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The contentious upgrade of a hospital in Zimbabwe is being driven by a businessman and financier who is also a prominent supporter of the ruling Zanu-PF, Kuda Tagwirei. His Sakunda Holdings have taken over both the Rock Foundation centre and St Anne’s, a second hospital in Avondale, also in the capital Harare.

Opposition to the new hospital is focused mainly on the fact that it will provide good quality of care for the wealthy, while government hospitals providing free services for ordinary people have proved disastrous for Covid-19 patients because they do not have the facilities needed. But last week’s legal action attempting to halt the Rock Foundation hospital upgrade was brought on a different basis.

Neighbour

Businessman Roger Stringer, who is a neighbour of the hospital, objected to the upgrade on a number of grounds including the health rights of himself and his family. Stringer wanted the planned refurbishment and equipping of the hospital as an isolation or quarantine centre to be interdicted because he had not had an opportunity to object to the grant of a licence to the project.

He and his family risked exposure to the coronavirus because of how close they were to the centre. Setting up ‘isolation centres’ and treating infectious diseases was the exclusive preserve of the local authority, Stringer argued. No exceptional circumstances had been shown to exist that would justify private entities becoming involved.

The Minister of Health and Child Care, along with Sakunda Holdings, were cited as respondents in the case. In their response to Stringer’s allegations, they said Sakunda was ‘merely assisting’ the government in its fight against Covid-19 ‘in the best interests of the people’. Sakunda argued further that ‘the public’ stood to benefit from the centre which was almost ready for use.

Infectious diseases

Possibly as a sop to the political argument around the new hospital, Sakunda said it had ‘also procured’ equipment, medicine and other facilities for the two state-operated hospitals dealing with infectious diseases. Further, Sakunda had become involved in the hospital project as part of its social responsibility.

Judge Happias Zhou who heard the case in the high court, Harare, began his judgment by reciting the history and ‘devastating consequences’ of the virus. The Government of Zimbabwe, had responded with a number of measures to deal with the global pandemic. Some of these measure ‘are drastic’ and ‘extraordinary’. ‘Private actors’, like Sakunda, had joined in the fight. Between them, the special measures being taken ‘have impacted and will impact on the fundamental rights of the citizen.’

Stringer had argued that his rights under the Administrative Justice Act had been infringed, but this was not so, said the judge, because that law did not apply unless the decision taken was ‘relative to that person’. Just because a decision was administrative in nature did not mean that ‘every person can invoke administrative rights in relation to the decision’. It would not apply ‘unless the person shows that the decision concerns him or her’.

'False premise'

In this case, the decision to refurbish the hospital for Covid-19 patients was not directed at Stringer who had no legal right in the property concerned. The allegations made by Stringer concerning ‘fraud, corruption, favour and unreasonableness’ in relation to the hospital was based on the ‘false premise’ that a partnership had been entered into for the benefit of Sakunda, said the judge.

Stringer made a ‘startling submission’ that no statistics had been made public by the government that warranted the establishment of a special private facility to deal with patients affected by the virus. ‘(Stringer) would rather have a situation where (the government) becomes overwhelmed by deaths before any action is taken,’ said the judge. ‘The developments on the entire globe regarding the impact of the coronavirus are there for everyone to see and the court takes judicial notice of them.’

Stringer had made unsubstantiated allegations that his right to a healthy environment had been infringed, and there was no evidence that the hospital would expose him to harm, the court said. Even if there were evidence of a threat to his individual environmental rights the principle that the health of the people was the supreme law, applied, ‘and a trade-off has to take place between the safety of the people and the rights of an individual’.

'Welfare'

The threat facing Zimbabwe was so great that the legitimacy of the government would be in question if it were to wait for more infections before accepting help from private entities to fight the virus. The ‘welfare of the people’ had to trump anyone’s individual interests.

There were ‘worrying features’ of the application which might have justified the punitive costs order sought by the government. Some of there were issues raised in heads of argument, and not on the founding affidavit, including ‘vexatious allegations of corruption which are not based on evidence’. But the court decided it would dismiss the application with an order that the applicant should pay the usual costs, rather than costs at a punitive level.

While the high court has turned down Stringer’s effort to halt the refurbishment of the hospital, however, local media have quoted prominent advocate, Thabani Mpofu, as saying he would march to ‘this private looter’s clinic and open its doors to the masses’. Literary figure Tsitsi Dangarembga added, ‘I will march to any new, elite Covid-19 hospital which is not accessible to ordinary Zimbabweans. The lives of ordinary Zimbabweans matter.’

Embrace

Commenting on the dispute, a government representative said Sakunda was ‘only complementing government efforts.’ ‘We can win the fight if we take a national approach. This means the government, local authorities, the private sector must all pull together. We need private sector facilities to augment government efforts. Let’s embrace free enterprise.’

Anger in Zimbabwe over failing public health facilities has been growing since the country’s first coronavirus death, that of Zororo Makamba. The journalist died in Wilkins Hospital, designated the main isolation facility for people infected with the virus. After his death it emerged that there had been virtually no facilities to help him, even though he was the first and at that stage the only Covid-19 patient. The hospital did not even have a single ventilator.

Clarity

Now the concern being expressed by ordinary people is that the government is setting up well equipped fee-paying hospitals for the political elite who would normally be able to fly out of Zimbabwe for treatment elsewhere, as former President Robert Mugabe did. And that there will continue to be little if any proper facilities available for the majority who cannot afford hospital fees and rely on state medical institutions. A lack of clarity by government on who will be accepted at the newly upgraded hospitals, and what will be done to renovate and restock the existing state hospitals, has not helped the situation.