Monday, 19 August 2019

WHY MAGISTRATE THREW OUT MDC APPEAL


THE MDC-Alliance’s bid to repeal a police order prohibiting their planned demonstrations in Bulawayo yesterday suffered a major setback after a magistrate threw out the opposition party’s urgent chamber application challenging the ban.

The ruling by Mr Tinashe Tashaya follows a notice of appeal filed on an urgent basis by the MDC Alliance at the Bulawayo magistrate’s court challenging a prohibition order by the police.

In papers before the court, the officer commanding police in Bulawayo Central District, Chief Superintendent Elizabeth Phiri and her boss Commissioner-General Godwin Matanga were cited as respondents.

In dismissing the appeal, Mr Tashaya ruled that there was a likelihood of violence and destruction of property similar to the January protests if the MDC-Alliance was allowed to proceed with the demonstration.

He also noted that although citizens have a constitutional right to stage demonstrations, the same rights had limitations in the interest of public safety, defence, public morality and health.

“There is no guarantee that the January incident may not be repeated if the appellant (MDC Alliance) is allowed to go ahead with the demonstration. Accordingly, the prohibition order is confirmed and the appeal is hereby dismissed,” ruled the magistrate.

MDC-A notified the police of their planned demonstration on August 8 this year but the police on Sunday issued an order prohibiting the event for security reasons. 

In its grounds of appeal, through its lawyer Advocate Perpetua Dube, who was instructed by Tanaka Law Chambers, the party argued that the reasons for prohibition given in the notice were vague, speculative and unreasonable.

“The prohibition of the public gathering on grounds such as those cited by the first respondent (Chief Supt Phiri) is an unlawful and unconstitutional limitation on the right to freedom of assembly and a violation of the rights of the members of the appellant,” she said.

“I submit that in our view, the issue is whether the notice is not an abrogation of the constitution, which gives the appellant’s members the right to demonstrate. We are concerned that the actions of the respondents in applying the provisions of the law were unreasonable and vague in the extreme as there is no substantiation of the allegations of a possibility of violence.”

Adv Dube said there was no link between the January violent protests and their planned demonstrations.

Ms Rejoice Hove from the Attorney-General Office, who was representing the respondents, opposed the appeal. She argued that there was a possibility of violence with agitated members of the public likely to join in the protests due to the economic hardships in the country.

She said the police acted in terms of Section 26 (3) of the Public Order and Security Act to show cause as to why the prohibition order was issued.

“There have been pointers to a possibility of violence and the mandate of the first respondent in particular as the officer commanding Bulawayo Central District, is to ensure that there is no lawlessness in her area of jurisdiction,” said Ms Hove.

“The first respondent is concerned with the fact that the purpose of the demonstration is derived from a disputed election outcome. The MDC Alliance is aggrieved by the Constitutional Court judgment and now wants to challenge the decision on the streets.”

Ms Hove said flashes of violence were reported last Friday hence if granted permission to stage demonstrations, MDC Alliance was likely to engage in violent protests given that the situation was volatile. She said the police acted on credible information.

Last week, MDC-Alliance’s bid to quash a police order prohibiting their planned demonstrations in Harare hit a brick wall after Harare High Court judge Justice Joseph Musakwa dismissed the application saying the political party had jumped the gun.

MDC-Alliance had notified the police of their planned demonstration on August 5 this year but the police on Thursday issued an order prohibiting the event for security reasons. Chronicle

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