ZIMBABWE’S Constitutional Court (ConCourt) has outlawed
section 27 of the Public Order and Security Act (Posa), which prohibits
demonstrations without clearance from the Zimbabwe Republic Police (ZRP),
saying the piece of legislation is open to abuse by State machinery.
Justice Rita Makarau handed down the judgment yesterday in
concurrence with the full ConCourt bench.
Civic groups and opposition parties have been calling for
the repeal of the draconian law, alleging it was being used unfairly to thwart
freedom of assembly as guaranteed by the Constitution.
Repealing of the section followed an application by the
Democratic Assembly for Restoration and Empowerment (Dare), National Vendors’
Union of Zimbabwe (Navuz) chairperson Stendrick Zvorwadza, Combined Harare
Residents’ Association (CHRA) and National Election Reform Agenda (Nera) in May
this year.
Section 27 of Posa stipulates that: “Temporary prohibition
of holding public demonstrations within particular police districts can be made
if a regulating authority for any area believes on reasonable grounds that
there might be public disorder”.
But Justice Makarau said a despotic regulating authority
could lawfully invoke these powers without end.
“In addition to failing to pass the test on fairness,
necessity and reasonableness, there is another feature of section 27 of Posa
that I find disturbing. It has no time frame or limitation as to the number of
times the regulating authority can invoke the powers granted to him or her
under the section,” Justice Makarau said.
“Thus, a despotic regulating authority could lawfully
invoke these powers without end. This could be achieved by publishing notices
prohibiting demonstrations back-to-back as long as each time the period of the
ban is for one month or less. It, thus, has the potential of negating or
nullifying the rights not only completely, but perpetually.
“On the basis of the foregoing, it is my finding that
section 27 of the Public Order and Security Act (Chapter 11:17) is
unconstitutional.”
However, Justice Makarau said section 175(6)(b) permits a
court declaring a law to be inconsistent with the Constitution to suspend the
declaration of invalidity to allow the competent authority to correct the
defect.
“It is just and equitable in my view that the second and
third respondents (Police Commissioner-General and Home Affairs minister) be
allowed time to attend to the defects in section 27 of the Public Order and
Security Act if they are so inclined,” she said.
“The question referred to this court by the Supreme Court
is answered as follows: ‘Section 27 of the Public Order and Security Act is
unconstitutional. The declaration of constitutional invalidity of section 27 of
the Public Order and Security Act is suspended for six months from the date of
this judgment. The matter is referred to the Supreme Court for the
determination of the appeal. Each party shall bear its own costs.”
High Court judge Justice Priscilla Chigumba two years ago
delivered a judgment saying the Judiciary authority is independent and must be
allowed to operate without fear, favour, prejudice or interference as they
operate in a democratic society.
She made the remarks as she delivered judgment in favour of
Dare, Nera, Zvorwadza and CHRA, while issuing an order temporarily lifting the
demonstration ban for seven days and ordering the police to follow the proper
procedures required in coming up with a statutory instrument in order to
enforce any ban.
Justice Chigumba’s remarks were made when the civic
organisations approached the court seeking an order to suspend the operation of
Statutory Instrument 101A of 2016, after Chief Superintendent Newbert Saunyama,
in his capacity as the Officer Commanding Harare Central District, issued the
order “purportedly” under Posa banning protests for two weeks.
Justice Chigumba then said the police’s conduct in the
matter was not impartial and fair since the Posa procedure and requirements
were not followed, adding the protestors’ rights were violated. Newsday
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