Thursday, 8 September 2016

DEMO BAN : AG TO CHALLENGE COURT RULING

ATTORNEY General Advocate Prince Machaya says his office will soon challenge the High Court decision invalidating Statutory Instrument 101A of 2016.


Justice Priscilla Chigumba on Wednesday declared unconstitutional the SI used to ban street demonstrations or processions from September 2 to 16 this year. She, however, gave Government up to seven days to rectify the defects in the legal instrument.

Advocate Machaya said although the interim order of the court effectively confirmed the police’s two-week ban on demonstrations, his office intended to challenge the invalidation of the SI.

Between now and September 16 when the one week grace period expires, no one is allowed to hold a demonstration in Harare Central Police District.
The one week grace period coincidentally expires at the same time with the contested two-week police ban.

Adv Machaya said: “We are not happy with the finding that SI 101A of 2016 is invalid. We intend to appeal at an appropriate time.
“We are also not happy with the dismissal of our objections in the matter and we are considering to file an appeal soon.”

In an interview, Adv Machaya said the judge, in arriving at her decision, was misled into relying on a section of Public Order and Security Act that was repealed a decade ago.
“Reference to Section 12 of POSA in the court order is incorrect because that section was repealed some 10 years. Such reference as it appears on paragraphs 2 and 3 of the interim order is not helpful at all.

“In papers prepared by Mr Tendai Biti, Section 12 of POSA was cited several times and maybe the judge was misled into considering it as a valid law,” said Adv Machaya.

One of the four preliminary objections dismissed by the court was an argument that in terms of Section 27B of POSA, any challenges against legal instruments mooted by local police are heard by a magistrate and not a judge.

“In terms of Section 27B, the aggrieved party approaches the magistrates’ court and not the High Court. “We argued that the High Court had no jurisdiction to hear the case but that was dismissed,” he said.

Adv Machaya showed The Herald a stamped copy of an affidavit by Officer Commanding Harare Police District Chief Superintendent Newbert Saunyama putting to rest allegations that his office had not filed the crucial document at the High Court.

However, Adv Machaya said his office decided not to use two other affidavits that came from the police because they were not helpful.

“Chief Superintendent Newbert Saunyama’s affidavit was filed at the High Court on September 7, as you can see.

“The other two affidavits were totally unhelpful and could not take our case any further. We exercised our discretion not to use them,” said the AG.

Adv Machaya said there was no room for infiltration of his office.
“The people we employ here are professionals who perform their duties in terms of the law. There is no room or possibility of infiltration by other forces,” he said. herald

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