To the Parliament of Zimbabwe
…protests and mass demonstrations remain one of the most vivid ways of the public coming together to express an opinion in support of or in opposition to a position… Long after the demonstrations, and long after the faces of the demonstrators are forgotten, the messages and the purposes of the demonstrations remain as a reminder of public outrage at, or condemnation or support of an issue or policy.
The Government of Zimbabwe gazetted the Maintenance of Peace and Order Bill (MOPB) on 19 April 2019. The bill seeks to repeal and replace the Public Order and Security Act [Chapter 11:17] (POSA). POSA was enacted in 2002 when the Movement for Democratic Change (MDC) party was seemingly in ascendancy and presented a unique challenge to ZANU PF’s hegemonic dominance of Zimbabwean politics. POSA repealed the Law and Order Maintenance Act [Chapter 11:07] (LOMA), a colonial and draconian law by the government’s own admission. POSA incorporated many provisions of LOMA and introduced even more repressive provisions. As documented in numerous reports, POSA became the centerpiece for State sanctioned repression. Members of the opposition and civil society became targets of a broad scheme to restrict the capacity to coalesce, organize and engage in mass action. In so doing, POSA significantly increased asymmetries of power as well as the spatial distance between the general public and their constitutionally guaranteed rights. This contextual history makes the imminent repeal of POSA a legitimate site for democratic inquiry.
The repeal and replacement of POSA could have far reaching consequences for the exercise of fundamental freedoms. The Constitution of Zimbabwe (2013) introduced an expansive declaration of rights which the State is required to protect, promote and fulfil. POSA infringes at least six of those rights in direct and manifest ways: the freedom of expression, freedom of movement, freedom of association and assembly, right to personal liberty, right to peaceful political activity and the right to demonstrate and petition. None of these rights are absolute. They are subject to the general limitations clause in the Constitution. However, the decision as to whether any limitation is constitutionally justifiable remains a question for the judiciary. Further, all the rights infringed by POSA are the civil and political or first generation rights. Such rights do not bear the financial burden immanent in socio-economic rights and for that reason, they are not subject to progressive realization. They are not aspirational and create an immediate obligation for realization and fulfilment claimable against the state. Thus, it is apposite to establish whether any changes to POSA will result in immediate realization of rights and if not, whether the decision over the reasonableness of any limitation is left to the judiciary.
The immediate realization of rights is made more urgent by the failure to deliver on the constitutional promise of 2013. Since the enactment of the 2013 Constitution, fulfillment of rights has been delayed in lieu of alignment of laws; with the effect of suspending enjoyment of rights pending legislative fiat. The institutional deference to an executive-led process of alignment of laws makes the repeal and replacement of POSA even more vital in completing the unfinished business of constitutional and legislative reform.
POSA has also featured prominently in the Government of Zimbabwe’s efforts to re-engage the international community. Demands that POSA must be repealed have created political will to reform the law. This position paper is based on a textual analysis of the MOPB to reveal the government’s sincerity, or lack thereof, in such a reform process. Any sincere process of reform will lead to full and immediate realization of constitutional rights whilst any limitation of rights will be in terms of a judicial outcome. A preliminary reading of the MOPB indicates that it is not only replete with errors in drafting, but falls short of any reformative agenda, securing the endurance of POSA under a different title.
This contains the new name of the Act and is possibly the most far-reaching change contained in the bill. It also indicates that it will repeal POSA, an intention which is not supported by any provision in the body of the bill.
As with most provisions of the MOPB, the interpretation section rehashes that of POSA. It reconstitutes the conflation of public demonstrations and public meetings under the moniker of public gatherings. This ensures the police maintain their regulatory powers over assemblage of both a demonstrative and deliberative nature. This conflation also allows the risks normally associated with violent protests to be used as a basis for regulating public meetings. It increases the scope of government powers whilst restricting the exercise of fundamental freedoms. A truly reformist bill would have limited its scope to those public gatherings whose scope poses such a disturbance to ordinary daily activity that the police would need to assist with maintenance of public order. Maintaining this conflation sustains the undue encroachment by the government into the sphere of legitimate activities by its citizenry.
This restates the provisions of Section 4 of POSA. It defines the regulating authority as the police officer in command of each police district and outlines the procedure for notification. The regulating authority should, in our view, only be the recipient of notices. The powers to prohibit public gatherings must be reposed in the courts as the arbiters of constitutionally permissible derogations.
This replicates Section 14 of POSA. It creates the strict liability offence of possessing weapons deemed likely to cause public disorder or a breach of the peace by a regulating authority for a period of three months. These weapons include knives, daggers, machetes and ‘any traditional weapon whatsoever.’ Anybody aggrieved with such prohibition can appeal to the Minister. This provision is overly broad. It allows prohibition of ‘traditional’ weapons without defining the term. A vast array of tools used by ordinary people could be criminalized this way, resulting in undue restrictions on personal liberty. Further, it is a blanket ban. It does not allow persons to give a reasonable explanation for their possession of such weapon. The Constitutional Court found such blanket prohibitions to be unconstitutional and to the extent that this provision has a dragnet effect, it is unconstitutional. Further, akin to section 27 of POSA, the prohibition could be re-enacted ad infinitum, thus rendering the rights under the constitution nugatory.
The specific ambit of this provision suggests class warfare. There is no scope for a prohibition of modern weapons. It is only traditional weapons which are subject to prohibition by the regulating authority. The provision is seemingly targeted at the vast majority of low income Zimbabweans who lead a traditional lifestyle and not the affluent elites who do not carry traditional tools. This is highly deplorable.
The persons aggrieved by any such prohibition are given recourse within the same branch of government which promulgates it. The Minister is a member of the executive, as is the regulating authority. The principle of separation of powers would require the judicial branch to determine whether such a prohibition is justified under the law. Internal appeals within the executive are hopelessly inadequate. Recourse to the Minister unduly increases executive influence at the expense of the judiciary, a vice that is replete within the provisions of POSA and the MOPB. A democratic society would require the police to apply for a prohibition order from the courts in the same way they apply for search warrants and for placement of accused persons on remand.
Sections 5,6,7,8 and 11
This reincarnates the repressive core of the MOPB’s precursor. It reintroduces Sections 23,24,25, 26 and 27B of POSA. Public meetings and demonstrations will still be subject to police notification seven days ahead of a public demonstration and five days ahead of the public meeting. Even though POSA and the MOPB refer to police notification, the procedure thereafter is actually one of seeking approval. It is the regulating authority who indicates if the meeting or demonstration can proceed or is subject to further consultations, amendments and/or eventual prohibition. Conveners must be invited for consultations prior to any prohibition order, but their submissions are not binding on the regulating authority and such meetings are often held as a procedural requirement towards prohibition. The failure to give notice of a gathering is an offence with sentence of a level 12 fine or imprisonment for a year of both. The chilling effect of such criminalization is palpable. Instructively, the South African Constitutional Court recently struck down the offence of failure to give notice, finding that the right of assembly is too important to be restricted by a law which even criminalizes ‘peaceful and unarmed assemblies.’
POSA and the MOPB seek to restrict political expression. Provisions relating to identity documents single out gatherings and meetings ‘of a political nature.’ The gatherings which are exempt from the application of POSA and the MOPB are primarily those held for purposes which are not political. Meetings discussing matters in the public interest are specifically with the law’s scope. This is contrary to the political rights in section 67 of the Constitution. The constitution permits peaceful political activity to challenge, influence or support any political or whatever cause. In spite of this permissive right, POSA and the MOPB come down hard against peaceful political activities with onerous bureaucracy, administrative red tape as well as criminal and civil liability. They significantly reduce the ability to exercise the rights enshrined in the Constitution.
Freedom of expression encompasses many types of expression ranging from private and intimate to public and commercial. These types of expression are given varying degrees of protection by the courts. Political expression lies at the core of free expression and has been called the bedrock of democratic society. This is why political speech has been protected by courts in South Africa, Australia, United Kingdom and the U.S.A. even when it is the basis of civil liability for defamation. In Zimbabwe, all expression is protected unless it amounts to hate speech or advocacy of hatred, incitement to violence, malicious breach of privacy and malicious damage to reputation. This central right which the Supreme Court of Zimbabwe reinforced as ‘one of the most precious rights of man’ is the subject of severe restriction under POSA and the MOPB. Constraining the very core of freedom of expression is particularly egregious given its value in democratic society.
The MOPB adds a requirement that the regulating authority must inform the convener in writing within three days of notification if a public demonstration can proceed without any further consultations or in terms of amendments agreed. POSA contains no such time limit. Public meetings can proceed on notification without such approval from the regulating authority. This is precarious. The police could conceivably argue that in the absence of a response within three days, a public demonstration cannot be held lawfully since it is distinguished from a public meeting which does not require such approval. This reinforces the subtle ways in which POSA and the MOPB morph the notification process into an application procedure. The exercise of constitutionally guaranteed rights is made subject to bureaucratic meddling and executive approval, with the irony of protests being permissible only with the approval of those who are likely the subject of those protests. All random and unplanned outbursts of mass action are thus criminalized. This is inimical to democratic accountability and democratic responsiveness is fostered and is not reasonably justifiable in a democratic society.
In terms of POSA and MOPB, those aggrieved by the decision of a regulating authority can appeal to the magistrates’ court on an urgent basis. This is counter-intuitive. constitutionally guaranteed entitlements are not subject to an application process, more so when they are civil and political rights. The party seeking to limit a right bears the burden of justifying why it must be limited. This is the reason the state must apply to have a person placed on remand and justify the restrictions on personal liberty. It is also why, after the enactment of the 2013 Constitution, the state must apply for an accused person to be remanded in custody since bail is now a constitutional right. In the same breadth, the police must apply when they seek to prohibit the right of assembly.
POSA and the MOPB grant the power to limit constitutional rights to a police officer whilst placing the onus on the aggrieved party to approach the courts. The absence of a neutral third party to assess whether these limitations are reasonably justifiable accounts for the selective application of POSA. Without a judicial filter to assess limitation of rights, the police have remained at large to target members of civil society and the opposition. This is contrary to the rule of law. Each constitutional intrusion must be subject to judicial oversight and those that seek to limit rights must bear the burden of approaching the courts. The MOPB should have placed the onus on the regulating authority to secure a prohibition order after a hearing in a court of law. This would have strengthened the rule of law and empowered the courts. As currently drafted, the MOPB regurgitates the framework in POSA in the clearest indication it is meant to facilitate the endurance of POSA in spite of formal repeal.
Section 7(2)(a) of the MOPB updates the requirement for conveners to provide any facsimile number with that to provide any ‘cellphone and electronic mail numbers.’ That is probably meant to refer to cellphone numbers and electronic mail addresses.
Sections 9, 22 and the Schedule
Section 9 of MOPB reproduces Section 26A of POSA. It lists gatherings exempt from the application of the notification requirement. The gatherings are listed in a schedule and as argued, they mainly exempt gatherings which are not of a political nature. The MOPB retains this formulation, which ensures the Minister can amend the schedule by way of statutory instrument through section 22 of the bill. It is only when the Minister is reducing the number of gatherings which are exempt from the notification requirement that parliamentary approval is required to activate the changes. Thus, Minister can add gatherings to the schedule without the need for any parliament approval. The schedule to the MOPB is also erroneously worded since it exempts gatherings in the schedule from the operation of section 24, a non-existent provision. This will need amendment to make the schedule operational. The sub-title also references a non-existent section 6(5).
This provision is identical to section 27A of POSA which prohibits public gatherings within a radius of twenty meters of parliament, one hundred meters of the Supreme Court, High Court and Magistrates Court as well as any protected area in terms of the Protected Areas and Places Act [Chapter 11:12]. The nature and purpose of such gathering is irrelevant; thus a small peaceful protest is still prohibited from the specified areas. It is a blanket ban whose dragnet effect is similar to that of Section 27 of POSA which was struck down as unconstitutional. In the words of Makarau JCC:
The ban has a dragnet effect and like most dragnets, it catches the big and the small, the innocent and the guilty…To the extent that the limitation in s 27 stereotypes all demonstrations during the period of the ban, it loses impartiality and becomes not only unfair but irrational.
Similarly, the prohibition of all gatherings within the vicinity of the specified areas, no matter their size, purpose or organization, is unfair and irrational. Only those gatherings of such character or volume as to pose a specific threat should have been made subject to prohibition by a court of law.
This provision also alienates voters from their elected representatives and judicial officers. It creates and entrenches a protected elite whose areas of work are shielded from those who finance them. The Constitution requires public administration which is accountable to the people and public officers are enjoined to show a readiness to serve rather than rule the people. Laws which protect parliament and other public institutions from democratic feedback are the antithesis of this willingness to serve or submission to popular accountability. It alienates public officials from the people they serve, undercuts democracy and is patently unconstitutional.
This is similar to Section 28 of POSA. Conveners are saddled with the onerous burden of civil liability if they fail to give notice for a public gathering or do not comply with directives, notices or orders given by a regulating authority. It also extends to conveners who incite public disorder or a breach of the peace. In those circumstances, the convener is liable to be sued for any property damage, human injury or death occurring at the gathering whether caused by or arising out of the public disorder or breach of the peace. There is already criminal liability against conveners for gatherings conducted without giving notice. Similarly, inciting public disorder or a breach of the peace also constitutes an offence. This provision ensures conveners suffer double jeopardy and are held liable in both civil and criminal forums for the actions at or arising out of such gatherings. It is a strong deterrent against the exercise of constitutional rights.
In the South Africa, the Constitutional Court stated that whilst regulation does not amount to limitation of the right to free assembly;
…the increased cost of organising protest action and the deterrent effect of the civil liability (does) amount to a limitation. Thus, this Court found that deterring the exercise of the right in section 17 limits that right. The reason is obvious. Deterrence, by its very nature, inhibits the exercise of the right in section 17. Deterrence means that the right in question cannot always be asserted, but will be discouraged from being exercised in certain instances.
The chilling effect is indisputable. Both the United Nations Human Rights Committee and the European Court of Human Rights have reached the same conclusion regarding levying of penalties for participation in a public gathering or unsanctioned gatherings. Such liability weakens the resolve of ordinary people to exercise their constitutional rights thereby undermining democratic participation. This provision has no place in a democratic society.
This provision is the same as section 29 of POSA. It outlines the powers of the police in the course a public gathering. Where such gathering is or becomes unlawful, police officers are empowered to disperse participants and if necessary, use force proportionate to the object of dispersal. The officers are not permitted to use weapons likely to cause serious bodily injury or death. There are no criminal or civil consequences if a police officer uses such weapons or excessive force. It is only the conveners who are saddled with onerous criminal and civil liability in terms of POSA and the MOPB whilst the police officers get carte blanche. This singular focus on citizens exercising fundamental freedoms whilst giving a pass to those limiting them underscores the undemocratic character of POSA and the MOPB.
This is a significant amendment of Section 32 of POSA. POSA empowers the police to demand production of identity particulars from anybody of or above the age of sixteen. It distinguishes between persons who must produce such particulars on demand and those who can produce them after a period of seven days. In the case of police road block, cordon, scene of a crime, criminal investigation or where the police are preventing a crime, the immediate vicinity of a controlled or protected area and a public gathering or meeting of a political nature, identity particulars are to be produced on demand. Failure to do so can result in indefinite detention pending verification of identity to the satisfaction of the police officer. All other persons are only subject to indefinite detention if they fail produce their particulars within seven days.
This provision is particularly odious because it grants powers to limit personal liberty in the absence of reasonable suspicion of the commission of an offence. The MOPB removes the powers of indefinite detention and this is highly commendable. It also creates the offence of failing to produce identity particulars after a seven day period for which a fine can be levied. Persons who fail to produce such particulars at a road block, cordon and the other specified circumstances can produce them at a police station within seven days thereafter, failing which they will be guilty of an offence and liable to a fine not exceeding level three. There is no such obligation in all other situations, meaning persons are required to carry identity particulars without an enforcement provision if they fail to produce them. Further, whilst Section 14 (2) of the MOPB requires those eighteen years and above to carry identity particulars, Section 14(3) empowers the police to demand production of such particulars from those who are sixteen years and above. Thus, in its current form, the MOPB allows the police to demand identity particulars from those who have no obligation to carry them.
Whilst the removal of the indefinite detention is laudable, this entire provision remains unconstitutional. It is akin to the unconstitutional practice of stop and frisk in the U.S.A. It empowers the police to make inquiries about a matter which does not constitute an offence. It is only when a person fails to produce such particulars after the seven day period that an offence becomes cognizable. The discretion as to whom the police will asked to produce identity particulars is entirely subject to the whims of the police officer. This make it susceptible to stereotyping and other forms of profiling. As Gubbay C.J. pointed out in striking down a similar provision of the National Registration Act [Chapter 10:17];
Some may tend to stop the young, others the elderly; some only men, others women; some the poorly attired, others those with the outward appearance of affluence; some those who are jacketless, others those without handbags; and so on. Racial considerations may even be a factor.
The Supreme Court, sitting as a Constitutional Court, ruled that this provision infringed on the right to freedom of movement. This right is contained in section 66(2)(a) of the Constitution of Zimbabwe (2013). To this extent, section 14 of the MOPB and section 32 of POSA are constitutionally invalid.
Section 15 and 16
These provisions replicate Sections 33 and 34 of POSA. Section 15 of the MOPB empowers the police to cordon areas to contain public disorder or violence or protect them from it. Section 16 contains the power to set up road blocks. Both provisions empower the police to limit movement of persons and conduct searches without warrant. Vehicles are stopped randomly at roadblocks whilst leaving a cordoned area is an offence. This implicates the rights to freedom of movement, freedom from arbitrary search and seizure and the right to personal liberty. In the case of roadblocks, these random stops were proliferated to maximize revenue within the police service. This fueled bribery and corruption to such an extent that it negatively affected the ease of doing business and invited rebuke from government ministers and tourism authorities.
The government of Robert Mugabe responded by directing that only one roadblock could be mounted within a 10km radius. When Emmerson Mnangagwa took over as President, the police announced they were scrapping the practice of spot fines and would only mount one roadblock within a 100km radius. There is no such restriction in the MOPB. The police service retains discretionary power regarding the frequency of roadblocks. The absence of such numerical limits was found unconstitutional in respect of blanket bans on public gatherings under section 27 of POSA. To this extent, this provision is also unconstitutional. Further, this provision empowers the police to search motor vehicles without reasonable suspicion of the commission of an offence. Even though the power to search in a cordoned area is in respect of those reasonably suspected of committing an offence, roadblocks have no such requirement. This re-enacts all the unconstitutional aspects of the law allowing police officers to demand identity particulars and befouls the constitution for the same reasons.
The power to cordon areas is without any spatial or temporal limit. The area can be as wide and the cordon last for as long as the police decide. This has “potential of negating or nullifying the rights not only completely but perpetually.” This is what was found objectionably in respect of Section 27 of POSA and cannot be countenanced in MOPB.
This is a revision of Section 37 of POSA. It is the section used to deploy the military on 1 August 2018. Such deployment is at the behest of the Minister responsible for the defence in terms of POSA, even though the Constitution permits such deployment at the behest of the President. The MOPB aligns this section with the Constitution by stating that the President authorizes such deployment. The deployment is to be reported promptly to parliament in terms of the constitution, and ‘within seven days when parliament next sits’ in terms of the MOPB.
These amendments are purely formalistic. According to the Report of the Commission of Inquiry into the 1st of August 2018 Post-Election Violence, POSA was already being interpreted in accordance with the requirements of Section 213 of the Constitution. The section 18 amendment will make this clearer even though the practice was already aligned to the constitutional dictates. The requirement to report to parliament within seven days will allow for accountability, but parliament cannot actually vote against internal deployment. Thus, this revision has minute formal benefits which will not change any aspect of the governance culture in Zimbabwe.
Sections 17, 19, 20,21 and 23
These sections of the MOPB are one and the same with Sections 35,38,39,40 and 42 of POSA. They contain powers of the police in respect of aircraft, aerodromes and airstrips, seizure and forfeiture generally and in relation to vehicles, aircraft and vessels, special jurisdiction of magistrates and saving of other laws relating to gatherings. They ensure that the letter and spirit of POSA is retained in spite of the vaunted rhetoric of repeal and replacement.
Section 27 of POSA
A noteworthy provision which has not been reduplicated in the MOPB is Section 27 of POSA. This section allowed the ex-ante prohibition of public processions and demonstrations in a specific geographic area for a period of up to a month. It was in contra-distinction to the ex-post review powers of prohibition granted under section 26 of POSA and Section 8 of the MOPB. In comparison to section 26, the section 27 power was infrequently used. It was invoked to ban public gatherings on 21 February 2007 due to mass unrest caused by hyperinflation, shortage of basic commodities and an official policy of ‘freezing’ prices. This power was also used on 1 September 2016, and again on 16 September 2016, to thwart a rising tide of anti-government demonstrations in the midst of growing popularity of the #Tajamuka and #ThisFlag social movements.
The 2016 episode was the first use of the section 27 power after enactment of the 2013 Constitution. The provision did not survive constitutional scrutiny and was held contrary to the right to demonstrate and petition. As such, this provision does not appear in the MOPB. The Constitutional Court suspended its order of invalidity for six months for the government of Zimbabwe to address the constitutional invalidity. The government did not act. Consequently, section 27 lost its force of law on 19 April 2019 and could not be replicated in the MOPB. Given that its powers were infrequently used, its invalidation, whilst progressive, does not represent a significant dent on the discretionary powers granted to the police in regulating the exercise of fundamental freedoms.
Section 46 of POSA
One provision which did not make it into the MOPB is section 46 of POSA. This is the section which repealed LOMA. As highlighted above, the MOPB only states the intention of repealing POSA in its title without a provision for repeal in the body of the bill. This needs attention to avoid promulgation of multiple conflicting laws.
Changes in Terminology
The other formalistic change is the title of the head of police who is referred to as the commissioner-general of police. The police are also referred to by their constitutional title of the police service as opposed to the police force. Yet again, this is formalistic. A police service denotes communally responsive policing meant to serve and protect whereas a police force conjures asymmetrical notions of hubris and aggression. Whilst calling them a service, the bill empowers the police to continue operating as a ‘force.’ The wide discretionary powers retained by the police service secure this legal continuity notwithstanding the change of title. The entire letter and spirit of the bill is testament to the limits of changes in diction without structural and substantive transformation. This is reflective of the entire bill, which is labelled as a benign instrument for maintaining peace when it retains all the trappings of a draconian piece of security legislation.
The Constitution incorporates international law and all treaties and conventions to which Zimbabwe is a party in the interpretation of fundamental rights and freedoms. Zimbabwe is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 21 of the ICCPR protects the right of peaceful assembly against restrictions except those necessary in a democratic society. The authoritative body on the ICCPR, the UN Human Rights Committee, held that criminalising the failure to give notice of an assembly unduly limits the right to freedom of assembly. The levying of a fine for an unsanctioned gathering was also found to be an unreasonably limitation on the right in article 21. In one case, the imposition of procedures was itself held to be contrary to the exercise of the right.
In terms of the European Convention of Human Rights (ECHR), the European Court of Human Rights (Grand Chamber) held that;
the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively.
The undue restrictions of this right were listed as including dispersal of participants, imposing penalties for participation in a gathering and levying fines for unsanctioned gatherings. It is apparent that the neither POSA nor the MOPB are consistent with international law and Zimbabwe’s commitment to the treaties and conventions it has signed.
The contents of the MOPB reveal an elaborate subterfuge meant to portray a titular change as substantive reform. It retains the vast majority of the provisions of POSA whilst sustaining its legislative assault on democratic freedoms. The police will continue to insist on ‘sanctioning’ public gatherings by civil society and the opposition to the detriment of democratic accountability. The MOPB does not so much replace as it duplicates POSA, thus further delaying the constitutional promise of 2013. In this way, the government will enforce repressive laws whilst making the counter-claim of having repealed them. The DARE judgement has been interpreted as only implicating section 27 of POSA.
This is true regarding the order, yet the judgment actually impugned all provisions with a dragnet effect ranging from road blocks, requirements for identity particulars to prohibitions of traditional weapons and public gatherings in the vicinity of parliament and other protected areas. Rather than using this opportunity to achieve full realization of the rights in the Constitution, novelty of title is being manipulated to ensure the executive retains control over the exercise of fundamental rights and freedoms. Just as the Mnangagwa government secured respite from international scrutiny by claiming they represented a ‘new dispensation, the MOPB may also be a way of settling the question of repealing of POSA by reintroducing it under a different name. This will require renewed advocacy efforts to expose the gimmick as the contents of the MOPB strongly suggest that the government of Zimbabwe is desperate to maintain and enforce draconian legislation, their claims of a new dispensation notwithstanding.Post published in: Featured