Women of Zimbabwe Arise (Woza) leaders Jenni Williams and Magodonga Mahlangu had their rights and fundamental freedoms violated, when they were arrested and detained for three weeks last year, the Supreme Court has ruled.
Woza had applied to the Supreme Court to have their arrest last year declared illegal. They also challenged charges levelled against them under Section 29 of the Public Order and Security Act (Posa)
The Supreme Court ruling said it does not follow that police should always break up a peaceful assembly even where it has not been authorised.
“They have discretion under Section 29(2) of Posa. If the gathering in this case had not been authorised, by allowing it to go on as they did, the police details that were there used their discretion,” the ruling said.
The Supreme Court said a balance must be struck, as required by the Constitution, between the interests of the individuals to come together in the exercise of fundamental rights to freedom of assembly and freedom of expression and the obligation of the state to maintain the peace, security and order of the public or any section of the public.
Williams told NewsDay that she and Mahlangu were arrested on October 16, 2009 at Mhlahlandlela Government Complex in Bulawayo after a protest to demand
access to humanitarian aid for Zimbabweans.
“At that time there was widespread starvation and no food on the shelves and government had banned humanitarian aid,” she said.
Williams said they were arrested and taken to court two days later and were charged under Section 37 (1) (a) (i) of the Criminal Law Codification and Reform Act Chapter 9:23.
The section punishes any person, “acting together with one or more other persons with him or her in any place or at any meeting with the intention or realizing that there is real risk or possibility of (1) disturbing the peace, security or order of the public or any section of the public.”
Williams said they were denied bail and sent to Grey Street Prison and then to Mlondolozi Prison where they were held for three weeks.
She said a successful High Court appeal granted them their freedom although initially restricting them to a 40 kilometres radius of their homes.
In the ruling the Supreme Court judges noted that the police were wrong to disperse the Woza gathering at Mhlahlandlela after allowing the leaders to address it.
“The gathering had not been marked by any acts of violence or followed any disorder. In fact the applicants do not seem to have been arrested for what actually took place at the gathering.
“What appears to have prompted their arrest was the protest they raised against what they considered was an unwarranted interference by the police with the exercise of their fundamental rights when the latter ordered the crowd to disperse. The police had in fact allowed the gathering to take place until after the applicants had finished addressing the crowd,” the ruling read in part.
“The examination of the conduct for which the applicants were charged with the contravention of Section 37(1) (a) (i) of the Act, shows that they were simply exercising their fundamental rights to freedom of assembly and freedom of expression.
“Their conduct, if proved at the trial, could not constitute the offence they were charged with. The facts could not have provided ground for a reasonable suspicion of their having committed the offence with which they were charged,” the ruling said.
The Supreme Court further ruled that in singing, dancing, chanting slogans and waving placards with messages that did not incite violence, the applicants used “legitimate” means of expressing views or opinions on the political and governmental issues of the day.
“The applicants were entitled to express disapproval of the political agreement signed by the three main political parties in the country on 15 September 2008. They were also entitled to do what they did to draw the attention of the government to the grievances arising from shortages of teachers for their children in schools at the time. They had a right to communicate their grievances to the people they considered had the right to receive the information,” the ruling said.