PW Botha, the “Ian Smith” of Apartheid South Africa, explained the purpose of the introduction of the most repressive laws South Africa had ever seen as “. . . to enable the authorities to deal with continued incidents of unrest without subjecting the population to the inconvenience of a state of emergency. To this end, existing legislation will be reviewed and amendments proposed”.
Perhaps, that is the best way to start the piece in explaining why Zimbabwe is not officially under a state of emergency, but has seen the introduction of laws designed to mimic a state of emergency, thus, creating a Rhodesia by another name.
With the introduction of Statutory Instrument (SI) 101a on Public Order and Security (Temporary Prohibition of Public Demonstrations in the Harare central district), there is no clearer indication that there is a continuation of where the Rhodesian State left off. If anything, it only points to a new Rhodesia or a Rhodesia by another name.
The status of SIs in Zimbabwe
In Zimbabwe, the legislative authority, that is, the power to make laws, rests with Parliament. Parliament often chooses to delegate some of this law-making ability to ministers or their directors or permanent secretaries. This type of law can be referred to as delegated legislation, or in the language of our Constitution, subsidiary legislation.
The SI in Zimbabwe is the embodiment of subsidiary legislation. The general rule around this type of law is that these instruments must be consistent with both the Principal Act (that is the act that governs it) and the Constitution. The 2013 Constitution addresses the abuse of statutory instruments by dedicating an entire section to it in the form of section 134.
In terms of section 134, SIs must be consistent with the Constitution and, in particular, these instruments cannot limit rights and freedoms in the Constitution. Very few constitutions in the world actually deal with statutory instruments and regulations in the way that the Zimbabwean Constitution does. The unique aspect here is that from the wording of the section, no statutory instrument can limit constitutional rights.
The language is not discretionary nor is it flexible. The Constitution is clear in this regard — an SI must not limit rights and freedoms. For this reason, a statutory instrument must be brought before Parliament for such scrutiny. It is the Parliamentary Legal Committee that is tasked with checking for constitutional compliance and logically, if it fails at that stage, then the instrument cannot be allowed to operate.
It would also seem that in terms of section 134(f), failure to bring an SI before Parliament invalidates the instrument. That provision is not discretionary, it is a preliminary stage that must be adhered to without fail. The reason for this provision is to prevent arbitrary government churned instruments that assume the force of law by by-passing Parliament.
In terms of section 134(d), before an Act gives rise to an SI, the Act must specify the limits of power, nature and scope of the SI as well as the principles and standards that will govern the SI. Without these checks and balances in the Principal Act, which in this case is the Public Order and Security Act (Posa), no Instrument may come into being. Posa has no such checks and balances making the creation of SI 101A unconstitutional.
The effect of SI 101a
The ban issued in terms of SI 101a essentially introduces a state of emergency (SoE) by another name. One of the key features of an SoE is the limitation of fundamental rights and freedoms in a manner that violates the Constitution temporarily. Where a legitimate SoE exists, this temporary limitation is understandable, but it must be done in ways the Constitution prescribes. It cannot be done by issuing SI 101a and certainly cannot be done through any police officer regardless of rank. Practically speaking, the latest instrument places a suspension on:
The freedom of assembly and association (S58)
The freedom to demonstrate and petition (S59)
The freedom of expression (S61)
The freedom to participate in gatherings in peaceful activities to challenge the policies of government of whatever cause — S67(2)(d); for all people in the Harare central business district for the duration of the ban. One could get arrested for actively or inactively participating or organising a demonstration while the ban is in effect.
There would be no point in repeating the obvious — the SI undermines very vital rights in the Constitution and is blatantly unconstitutional. There is no need to discuss how the violations take place as this has been done in previous articles and this has also been widely written on by leading legal minds. I agree with them unreservedly.
I would only add that, in my opinion, it would be unnecessary to even get to the Limitation Clause of the Constitution, by which rights can be limited. This is so because for some reason, our Constitution includes an express provision stating that no SI may limit rights and freedoms. This is a unique provision that I predict will pose some difficulty.
The difficulty, I foresee, arises with the presence of the phrase “may not limit rights and freedoms”. Ordinarily, even delegated legislation should be capable of limiting laws if it meets the test set out in the limitation section of the Constitution, but our Constitution seems to suggest that is not possible. In law, “must not” is generally seen as a mandatory peremptory term, which means it must be complied with strictly with no discretion unlike directory terms which are flexible enough to allow a discretion where circumstances permit.
To interpret “must not” in the context of our Constitution as a directory term would render most of the Constitution without force, because whenever it directs that something be done it uses “must” or prohibits State conduct by using “must not”.
In my view, the presence of “must not” in the text is indicative that SIs are not suitable for the limitation of rights and by implication , for the limitation analysis and only the Principal Act may limit rights and freedoms in line with the limitation clause.
Given our history of SIs being abused by the Executive, it would make sense why this provision exists. Those who view that provision as directory or simply as a flexible term will come to the conclusion that SIs are capable of limiting rights as long as it is done through the limitation — that interpretation is also possible.
Apart from this reasoning, the SI has not gone to Parliament for scrutiny and cannot operate until this is done. Furthermore, Posa does not set out the limits, scope and extent of powers to be exercised as envisaged in S134 and, therefore, any SI purported to be produced under it is unlawful because it bypasses and ignores a constitutional imperative.
Lastly, delegated legislation is usually delegated to ministers or their permanent secretaries and not police officers. Not only is that a breach of the separation of powers, but it is absurd that a police officer meant to apply the law is dictating what the law is. While it is true that Posa gives the police this power, that does not make it any less absurd that a single police officer limits a constitutional right by issuing a notice. The Zimbabwe Republic Police went to great lengths to counter my article on how the country is run like a police state, but this is the greatest indication that Zimbabwe now functions like a police state.
What is interesting to me, however, is how much the Zimbabwean authorities have in common with, not only the Rhodesian, but the South African Apartheid authorities and I explain this below.
The copy-and-paste repressive tendencies of the Zimbabwean government
In a recent article, I discussed how the Cyber Crimes Bill was taken from different models and jurisdictions. That is not all that the Zimbabwean authorities have copied and pasted from other countries or governments. About 90% of Posa is a hybrid copy-and-paste from the various Apartheid emergency laws and Rhodesian Law and Order (Maintenance) Act (Loma), which cracked down on those who fought against and challenged white minority rule. It’s also interesting to note that though Loma was repealed, its provisions were only transplanted into Posa, the Access to Information and Protection of Privacy Act and The Criminal Code.
Rather shamefully, our pro-people, pan-African, democratic government borrowed the very concepts that were used to oppress black people both in South Africa and Zimbabwe and now uses the same laws on its people. Loma, drafted by the Smith government, relied heavily on the South African emergency laws of the late 50s and early 60s.
Of note is the Riotous Assemblies Act of 1956, where one can trace the origins of some of the definitions and concepts in the Posa, whose provisions relating to bans on meetings, gatherings and various weapons are derived from the Apartheid Security Emergency Regulations of 1985/6.
Like the Apartheid government, the Zimbabwean authorities have an obsession with packaging repression in unjust laws to give the impression that their actions are lawful. This somewhat explains why the laws are strikingly similar.
The aspect on notices and procedures relating to the convening of gatherings were directly copied from the Gatherings Act of South Africa, a law that was hurriedly passed in the final months of Apartheid to deal with insurrection and feared riots ahead of the first democratic elections. The Gatherings Act itself actually takes its provisions from a host of sources, including the Internal Security Act of 1982 and the subsequent regulations passed during the State of Emergency periods of the late 80s.
The prohibition on gatherings around the vicinity of Parliament also comes from the same Gatherings Act and the various emergency regulations leading up to it.
In some cases, the provisions found in the Rhodesian Law and Order Act (LOA) are copied out in Posa, with little changes at all almost as if the drafters had no time to modify anything. Examples include:
The First Schedule which discusses exceptions to bans on gatherings
The blanket bans on demonstrations and gatherings which SI 101a is based can be found in S10 and 11 of the LOA
Sections 34-42 of Posa, which deal with the powers of search and seizure and special jurisdiction of magistrates amongst other things
The entire concept of a regulating authority and the invasive powers given to police throughout Posa
There are, however, instances where the Rhodesian legislation was “lighter” than Posa and examples of these include:
Posa has more grounds of arrest /detention than the LOA ever did.
Under LOA, there was no offence created for being at a gathering, demonstration or public meeting without identification. In terms of Posa, this is an offence.
The offence of violating a temporary prohibition on public gatherings in LOA was either a fine or a year sentence. Posa makes it possible for both a fine and a sentence of one year to be imposed on the offender.
A ban like SI 101a could only be made by a police officer for 72 hours unless the minister then upheld or endorsed it. Under Posa, a police officer can, without oversight of the government minister in charge, ban gatherings and protests for one month at a time.
There was no blanket prohibition of weapons apart from arms of war, which could generally not be possessed by civilians unless legally permitted to do so. This included bombs, detonators, arms etc. Posa’s drafter(s) created the peculiar ability of three-month blanket bans on objects like catapults.
I have previously argued and still maintain that Posa is unconstitutional in toto, that is to say, as a whole. The drafter(s) sought to legislate for a perpetual SoE, albeit, in a manner that circumvents the Constitution (both former and present). It cannot be allowed to stand in a constitutional democracy. It cannot even be saved by severing the bad parts because it is bad law from start to finish.
Posa poses more of threat on our independence and sovereignty than the imagined Western threats. Posa is an attack on the gains of the liberation struggle and mocks those that sacrificed their lives to be free from the shackles of Rhodesian rule.
Nothing would remain if it was tested against the Constitution. It is not only unfortunate, but regrettable that our government continues to govern us using the same legislative enactments they fought against.
There can be nothing more tragic than the packaging of Rhodesian and Apartheid laws as Zimbabwean laws. Sadly, we have become a case of the liberators using the tactics of the oppressors to oppress the liberated and the onus now is on the government to reconfigure and change its ways in this regard. Until then, one can only see Zimbabwe as Rhodesia by another name.