Police Ban on Demonstrations Challenged in High Court

Friday 16th September saw the publication in the Government Gazette [as General Notice 245/2016], and in a newspaper [The Herald], of notices prohibiting, for the period of one month from 16th September to 15th October, the holding of all processions or public demonstrations or any class thereof in the Harare Central Police District.

Both notices are available on the Veritas website–

• GN 245/2016 in the Government Gazette via this link
• The Herald notice via this link [this notice shows the official date-stamp for 15th September and the signature of the Officer Commanding, Harare Central Police District]

Friday’s prohibition order was issued, in terms of section 27 of the Public Order and Security Act [POSA], by the Officer Commanding Harare Central Police District in his capacity as Regulating Authority of the district for the purposes of Act.  The order followed the publication on Tuesday 13th September of preliminary notices warning that such a prohibition was proposed, and [only in the notice published in the Government Gazette] inviting interested parties to send written representations about the proposed prohibition order to the Regulating Authority.  [Note: The preliminary notices were discussed in Bill Watch 43/2016 of 14th September where it was pointed out that the proposed prohibition, if put into effect, would take over from the two-week prohibition brought about by SI 101A with effect from 2nd September.]

High Court Challenge to be Heard 27th September

Two urgent applications challenging the new prohibition order were promptly filed at the High Court in Harare on Friday.  At a hearing before Judge-President Chiweshe yesterday, Monday 19th September, it was agreed that the parties would file their heads of argument on or before Wednesday 21st [the applicants] and Friday 23rd [the respondents], respectively, ahead of a hearing on Tuesday 27th and judgment on Friday 30th September.

Among the grounds raised by the applications are—

·        the allegation that although he invited representations on the proposed prohibition as required by section 27(2) of POSA, the Regulating Authority had no bona fide intention of listening to objections and had made up his mind anyway

·        that because the prohibition order does not state the regulating authority’s reasons for believing the ban to be justified, the Regulating Authority has failed to comply with section 3 of the Administrative Justice Act

·        that the order limits numerous constitutional rights and freedoms enshrined in the Declaration of Rights and is therefore in breach of section 134(b) of the Constitution, which states that “statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights”.

There are differences between these cases and the case in which on 7th September Justice Chigumba declared invalid SI 101A/2016, the first ZRP attempt at prohibiting demonstrations in Harare, but suspended her declaration for seven working days to allow “the competent authority to correct the defect”.  One such difference is the publication of the preliminary notices two or three days before the final order of 16th September; there was no preliminary warning before the first prohibition.  Another is that this time round mandatory publication in the Government Gazette took the form of a General Notice rather than a Statutory Instrument.  It will be for Judge-President Chiweshe to decide whether these differences, and the evidence and arguments before him, are sufficient to warrant a conclusion different from that reached by Justice Chigumba.   [Justice Chigumba’s order of 7th September is available via this link to the Veritas website.  Reasons for judgment are not available. ]

Other Points About the Prohibition

There are other points giving cause for concern—

·        discrepancies between the newspaper and Gazette notices   As with the two preliminary notices, the one published in The Herald is much the shorter of the two, and the one in the Government Gazette is not only much longer but more competently drafted.  Section 27(3) of POSA requires the Regulating Authority “to ensure that the order is published … in the Gazette … and in a newspaper circulating in the area” [underlining by Veritas].   It seems obvious that the same order should have been published in both Gazette and newspaper.

·        unsatisfactory description of the area affected  Both notices repeat the description used in the preliminary notices and attract the same criticism already levelled at that description in Bill Watch 43/2016 of 14th September.  A map of what may be assumed to be the intended area is available via this link.

The Administrative Justice Act

The Administrative Justice Act is an Act of 2004.  Its objective is “to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act” [an updated version of the Act is available via this link to the Veritas website].   The Act’s provisions have now been reinforced by section 68 of the Constitution [“Right to administrative justice], a provision which had no express equivalent in the former Constitution.

Among other requirements, section 3(c) of the Act lays down a general rule that an official who takes administrative action must supply written reasons for that action within the time specified by law or where, as is the case with section 27 of POSA, no time is specified by the relevant law, within a reasonable period after being requested to supply reasons by a person concerned.  Courts have repeatedly ruled that an obligation to provide reasons for official action is not satisfied merely by citing the section number of the enabling statutory provision, or by repeating phrases from that provision.

Media organisations and practitioners please note:  The Act’s title is the Administrative Justice Act, not the Administration of Justice Act.  Even some legal practitioners get this wrong.

Addendum on the Order Banning the Carrying of Weapons

Bill Watch 42/2016 of 12th September discussed the order by the same Regulating Authority prohibiting the carrying in public, within the Harare Central Police District, of certain weapons.  The wording of the order was reproduced in Bill Watch 42, complete with original paragraphing and layout, and errors in spelling, punctuation and grammar [and a scan of the signed and date-stamped document is available via this link to the Veritas website].  A helpful reader who is a respected senior legal figure has pointed out how unsatisfactory the wording of the order is.  Examples of its defects are—

• that the prohibition is ultra vires because it is for more than the maximum three months authorised by section 14 of POSA [2nd September to 2nd December is one day more than three months]
• that the inclusion in paragraph B) of the words appearing after “whatsoever” makes nonsense of paragraph B) and perhaps of the whole order
• that the crucial last four lines, just above the Regulating Authority’s signature, prohibit the “carrying” of weapons but not their “public display”, despite the Regulating Authority’s apparent concerns over both public display and carrying, as indicated by the words appearing before paragraph A)
• that the last four lines prohibit the carrying or public display of weapons but not “items capable of use as weapons”, despite the Regulating Authority’s apparent concerns over both weapons per se and items capable of use as weapons, such as stones.

Comment: It is deplorable that an official order should have been published in such a confusing state.  It falls far short of the standard of clarity required for a legal document with potentially serious consequences for those perceived by the police to have contravened its terms.  Remember that section 14 of POSA makes contravention of an order an offence with a possible sentence of six months’ imprisonment or a $200 fine or both.  The ordinary citizen in the street – the person who is expected to obey a prohibition – is entitled to know exactly what is or is not prohibited – as is the ordinary police officer responsible for enforcing it.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied