POSA, is that you? – Part 1

Just Saying: Paul Kaseke

GOVERNMENT recently gazetted the Maintenance of Peace and Order (MOPA) Bill which is intended to replace the Public Order and Security Act (POSA), at least in part.

This is in fulfilment of the government’s promise to modernise the controversial law and align it to the Constitution. Over the next two weeks, we will unpack the Bill and explore its strengths and weaknesses.

The long road to POSA – some background history

POSA was enacted in January 2002 to replace the Law and Order Maintenance Act (LOMA). LOMA was enacted by the Rhodesian government in 1960. LOMA was an emergency law created to deal with the civil unrest that had engulfed the country at the time. It is no surprise, therefore, that the law was skewed heavily in favour of the government while suppressing civilian political rights. Interestingly, the Rhodesian government relied heavily on apartheid South Africa for most of the clauses in LOMA. It was, therefore, a hybrid copy and paste of various apartheid emergency laws such as the Riotous Assemblies Act of 1956 and the Apartheid Security Emergency Regulations. After independence, the Robert Mugabe-led government used LOMA for two decades before disbanding the law.

Instead of discarding the emergency-type provisions in the new Act (POSA), the government merely replicated them and, in some cases, created stiffer penalties than LOMA. When one looks at POSA and LOMA it is easy to make a link between the two and almost embarrassingly so. Roughly about 90% of POSA can be traced back to emergency laws in either South Africa or Rhodesia.

While LOMA was repealed, its provisions were transplanted into and resurrected POSA, the Access to Information and Protection of Privacy Act and the Criminal Law (Codification and Reform) Act. The concepts of bans on meetings, gatherings and prohibition of certain weapons for example, were replicated without major changes from the Rhodesian legislation that was used to suppress the black masses.

POSA was LOMA incarnate or Mugabe’s own version of it. Seemingly, the Zimbabwean authorities had 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. Some aspects of POSA and the new bill can be traced back to the Gatherings Act of South Africa, which was one of the final pieces of legislation passed by the apartheid government in 1992/1993. The rationale behind the Gatherings Act was to deal with insurrection and feared riots ahead of the first democratic elections in South Africa.

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. Some of its provisions have already been declared unconstitutional, but that seemed to skip the Zimbabwean government because these same provisions were copied into both POSA and the new bill. The history of POSA is important to understand why we need a break from these emergency laws and how the constitutional rights and liberties afforded to us must be given effect to and not reduced by the Bill. I am afraid, without this understanding, MOPA will continue to keep the country in a perpetual state of emergency.

What’s new in the Bill?

The short answer to that is that very little has changed hence the title of this series. It is a repacked POSA just as POSA was a repackaged LOMA. LOMA was Ian Smith’s legacy, POSA was Mugabe’s legacy and seemingly, MOPA will be President Emmerson Mnangagwa’s legacy.

While it largely replicates POSA, the Bill changes a few things. In terms of the Bill, internal deployment of the army to assist police can only be done by the President which is what section (s)213 of the Constitution dictates (see clause 18 of the Bill) and the President must inform Parliament of such deployment, which is a requirement of s214 of the Constitution (see clause 18 of the Bill).

These are two praise worthy changes that align themselves to the provisions of the Constitution. As we have argued before, POSA created an anomaly where the Minister of Defence could deploy the army to help police without the consent or authorisation of the President. Thankfully, this position has been rectified in the Bill. The other changes are cosmetic in the sense that they merely update the titles in POSA to reflect those used in the Constitution, such as the title of the Police Commissioner-General.

Another change is the addition of time periods in which the police have to notify parties of a decision to proceed with a public meeting or gathering. There are few deletions of certain provisions from POSA, however. For example, the infamous s27 of POSA, which was declared unconstitutional by a full bench of the Constitutional Court in Democratic Assembly for Restoration & Others v Saunyama N.O & Others, was omitted from the Bill. This is also a welcome move although government really had no option, but to comply with the judgment.

What has been copied from POSA?

POSA’s provisions have largely been transplanted into the draft Bill and I will show why below. For starters, the Bill retains some circular and useless meanings found in the introduction section of POSA, such as “procession” and “private place”. Procession is defined as a “procession in a public place”, while a private place is defined as “any place which is not a public place”. The following provisions of MOPA have been retained from POSA, with little to no changes at all:

 Section 14 of POSA, on the temporary prohibition of possession of certain weapons, is now Clause 4 of the Bill
 Section 23 of POSA, on the appointment of conveners, is now Clause 5 of the Bill
 Section 24 of POSA, on the appointment of responsible officers, is now Clause 6 of the Bill
 Section 25 of POSA, on the notice of public demonstrations, is now Clause 7 of the Bill
 Section 26 of POSA, on the consultations with respect to gatherings, is now Clause 8 of the Bill
 Section 27A of POSA, which prohibits gatherings in the vicinity of courts and parliament, is retained as is in Clause 10
 Section 27B of POSA, on appeals against prohibitions, is now Clause 11 of the Bill
 Section 28 of POSA, on the civil liability arising from public gatherings, is now Clause 12 of the Bill
 Section 29 of POSA, on the powers of the police, is now Clause 13 of the Bill
 Section 33 of POSA, on the cordon and search powers of the police, is now Clause 15 of the Bill
 Section 34 of POSA on the powers to stop and search is now Clause 16 of the Bill
 Section 35 of POSA, on the powers of police in relation to aircraft and vessels, is now Clause 17 of the Bill
 Section 38 of POSA, on the powers of seizure and forfeiture in relation to vehicles and aircraft, is now Clause 19 of the Bill
 Section 39 of POSA, on the powers of search and seizure generally, is now Clause 20 of the Bill
 Section 40 of POSA, on the jurisdiction of the courts, is now in Clause 21 of the Bill
 Section 41 of POSA, on the amendment of the schedule, is retained as Clause 22 of the Bill
 The Schedule in POSA is retained as the Schedule in the Bill

It seems government was in a hurry to prepare this Bill because it not only failed to make the sweeping changes required to constitutionalise the law, but it also failed to proof-read its copy and paste work with some humorous effects.

For example, the Schedule in POSA refers to a s24 and the Bill also refers to a s24, except there are only 23 provisions in the Bill. In other words, there is no s24 of the Bill — it simply does not exist. The Schedule in the Bill states that the category of gatherings listed will be exempted from s24’s application.
With the patent error of referring to a non-existent clause, the Schedule, therefore, has no meaning. It also refers to a s6(5) — a section not found in the Bill.

There is one last absurdity worth discussing for this week and that is to be found in the repealing of POSA. According to the Bill, the purpose of MOPA is to repeal POSA, but a fatal mistake is made by the drafters.

There is no repeal clause in the Bill so while it refers to repealing POSA in its preamble, the Bill itself does not repeal the Act expressly, which is ordinarily required for the repeal of laws.

It is very mischievous to repackage oppressive laws as constitutionally compliant when in fact the old laws remain in place under a different label. Government should have simply stated that it wanted to amend POSA because the minor changes it made qualify as amendments.

Since POSA was identical to LOMA and the Bill is identical to POSA then the Bill is LOMA by another name. If the Bill is passed in its current state, it will keep the country in a perennial state of emergency. Next week, we will dissect the substantive defects of the provisions of the Bill and how they violate the Constitution.

 Paul Kaseke is a legal adviser, commentator, policy analyst and former law lecturer with the Wits Law School. He writes in his personal capacity. You can give him feedback via email: justsaying@paulkasekesnr.com or follow him on Twitter @paulkasekesnr

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