This order is questionable on several grounds — amongst others, whether the central government should enforce local authority by-laws on street vending — but in this Constitution Watch we shall confine ourselves to asking if it is constitutionally permissible to deploy the army to move the vendors.
Role of the Defence Forces
The Constitution regards the army as one of the branches of the Defence Forces. “The function of the Defence Forces is to protect Zimbabwe, its people, its national security and interests and its territorial integrity and to uphold this Constitution.” [section 212].
According to section 213 (2):
“With the authority of the President, the Defence Forces may be deployed in Zimbabwe –
a) in defence of Zimbabwe;
b) in support of the Police Service in the maintenance of public order; or
c) in support of the Police Service and other civilian authorities in the event of an emergency or disaster.
There is a very good reason for limiting the grounds on which the Defence Forces can be deployed within Zimbabwe. The Defence Forces are the coercive arm of the State, to be deployed when the government is compelled to use violent force to defend itself. Their personnel are not trained as police officers: ultimately they are trained to kill people. They do not even have the legal power to arrest civilians.
When it comes to ordinary police duties such as moving street vendors to designated sites, the police and local authority officials should be left to do it. It is implicit from the nature and role of the Defence Forces that only when a threat to public order must be forcibly quelled can the Defence Forces be called in to apply that force.
Conclusion
If the government intends deploying the army to remove the street vendors, without first giving the police and local authorities an opportunity to do so, then it will be acting unconstitutionally.
Post published in: Analysis