POSA, is that you? -Part 3

just saying Paul Kaseke

LAST week we explored the defects of the Maintenance of Peace and Order (MOPA) Bill more substantively and why it should not be passed without major reforms. In this last piece, we examine additional problematic provisions and how the Bill can be aligned to the Constitution.

The requirements to give notice for public meetings and gatherings in Clause 7 interferes with the freedom of conscience in section 60 of the Constitution which provides, among other things, the right to express one’s thoughts. Section 61 of the Constitution further provides for freedom of expression which includes the right to seek, receive and communicate ideas and other information.

A protest or public meeting often involves such communication of ideas. Requiring notification before people can petition government for example, therefore, means that the right in the Constitution is limited and unduly so. While notification might be necessary for purposes of logistics and advising other members of the public of potential traffic caused by public gatherings and protests, this should not be the basis for criminalisation or a prohibition of the gathering or protest.

In other words, notification should only be for purposes of ensuring the safety of the protesters and other members of the public, but it should not be a requirement for a protest or gathering to proceed. The power given to the police to prohibit a gathering or meeting is, therefore, unnecessary and impedes on the constitutional right to protest. By requiring such notification before a protest can proceed, the Bill undermines the right to protest.

Another interesting limitation to the right to protest is the fact that a protest can be halted if it will interfere with traffic. With due respect, all protests interfere with the flow of traffic and this is inherently part of any protest the world over. This cannot, therefore, be a reason for protests to be prohibited.

The constitutional right to protest only requires that protests are peaceful. It does not require that protests do not interfere with traffic and to the extent that the Bill places unreasonable qualifiers for a protest to proceed, it is unconstitutional and undesirable in our constitutional order.

To remedy the unconstitutionality posed by Clauses 5-8, I would remove the criminalisation that stems from failing to notify the police and further remove powers of prohibition granted to the police. Should anyone feel that their rights will be prejudiced by a protest, then they can apply for a court-backed interdict which will prohibit the protest or place conditions on it.

Ultimately only the courts should be able to prohibit protests and, therefore, any prohibition powers in the Bill should be transferred to the courts.

Clause 10 prohibits gatherings in certain places which include Parliament, the courts and other protected areas in terms of the Protected Areas Act.

The Protected Areas Act creates criminal offences for gatherings at places so listed as protected places. Some notable areas include ZBC studios, the National Heroes‘ Acre, the State House and recently, Star FM studios. Clause 10, therefore, prohibits people from gathering within a radius of 100m of the sites.

The November 2017 protests which at some point drew close to State House would, therefore, be unlawful in terms of the Bill. Gathering outside a court house, as was the case when Pastor Evans Mawarire was on trial, would also be unlawful. There is no logic in the prohibitions which are best understood within the context of their origins ie, during civil unrest periods where there were concerns that these buildings would be attacked.

The prohibitions are historical in nature, but serve no purpose in our democracy. They interfere with the rights to movement, the rights to assemble and to give petitions.

The prohibition on carrying weapons in Clause 4, raises a number of problems

The first is that it is overly broad without a justification. It does not qualify possible excuses that will exempt people from liability. Furthermore, there is no limit to the number of times the police can declare a prohibition in an area. The Clause places a three-month cap for the prohibition, but this can presumably be renewed as long as the police feel it necessary to do so. There is no oversight and accountability in that respect.

There is nothing that stops the police from issuing prohibitions four times in a year. Again, this places the country in a perpetual state of emergency. The Police are further entitled to seize weapons in areas where such prohibitions exist, but without a search warrant.

The potential for abuse of this power is not to be underestimated. To remedy these issues, it would be preferable for a prohibition to be approved by Parliament instead of the police. The police can motivate for a prohibition, which needs to then be approved by parliament for up to a month. Should there be further need to continue with a prohibition, I propose that the police make further submissions to Parliament which will then approve the renewed prohibition.

In this way, there is more oversight and accountability.

Clause 14 of the Bill requires people to have identification documents at all times. Not only is this a draconian requirement that resembles emergency laws enacted under the Rhodesian government, but it poses a limitation on the right to movement in terms of s66 of the Constitution. Section 66 of the Constitution grants everyone the right to move freely within Zimbabwe and leave Zimbabwe.

The requirement to produce such documents as and when requested by the police, interfers with this right. The Bill grants a grace period of seven days in which an individual must produce an ID document after being requested to do so. If no ID is furnished after the seven days, a criminal offence is committed.

While the provision is better than POSA which required the document to be furnished on the spot without a grace period, it still finds no place in a democratic society. One of the unintentional consequences of the Bill is that it does not take into account those who may have genuinely lost such documents.

This clause cannot be remedied, it simply needs to be deleted from the Bill.

It is also very important to remember that something very odd takes place with the placement of the Bill. Readers will recall that we highlighted the absence of a repeal clause which would repeal POSA. This means that the Bill will not substitute POSA or replace it. It will seemingly operate alongside POSA.

Some might brush it off as a drafting error, but when one looks at Clause 23 of the Bill, this becomes a complicated argument to make. Clause 23 states that “nothing in this Act shall be construed as affecting the right or duty of any person under any other law to disperse riotous gatherings and to prevent or suppress other unlawful acts, or to assist in such dispersal, prevention or suppression”. The Bill is, therefore, intended to work alongside any other laws that provide for the suppression or prevention of gatherings which include POSA since the Bill does not repeal it. This is quite bizarre and should be remedied by inserting a repeal clause within the Bill.

In remedying the defects of the Bill, Parliament must take note of all the constitutional rights infringed on by the Bill in its current form and should also consider that s46 obliges courts and forums to give full effect to constitutional rights. Should the Bill be passed as is, a court will have to interpret the piece of legislation in a pro-rights manner, if an application is brought before it. There is, therefore, a strong likelihood that the offending provisions will be declared unconstitutional if challenged in court. To avoid this, rights must be interpreted in the broadest of manner when refining the Bill.

What should be clear from the past three weeks is that MOPA is repugnant to a constitutional democracy and keeps the country as a police State where the police have unfettered powers that can be invoked without sufficient oversight and accountability. While there is need to deal with riotous behaviour that occasions some protests, MOPA does more than that by placing several constitutional rights at the mercy of the police.

Given the Zimbabwe Republic Police’s record and our history in general, it is not desirable to place that kind of unchecked power in the hands of the police. For those who have missed it, MOPA is essentially a police-driven law in that all its provisions are empowering tools for the police to use against citizens. It is not a people-centric bill; it is a State-centred bill aimed at minimising rights available to citizens, while increasing State power to keep the country in a perpetual emergency state.

It is regrettable that in 2019 we still have draft legislation that regulates the number of people that can gather in one place at any given time without notifying the police. It is even more regrettable that Rhodesia still finds a place in our country’s present and future through such repressive and retrogressive laws…just saying!

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