By Nhlanhla Mlilo
When I read the draft Bill through for the first time, l deleted the copy convinced l had downloaded the wrong document. In its current state, this Bill is a contradiction to what we have been led to believe is the letter and spirit of the second republic (return to democracy), single-handedly rubbishes Zimbabwe is open for business mantra and I dare say is worse than the POSA.
One can be forgiven for finding linkages between the proposed Maintenance of Peace and Order Bill, the 1 August 2018 riots and the Tendai Biti saga. I can only imagine what the fate of Tendai Biti and many others perceived to have contributed to the violence that ensued the 1 August 2018 March, had the Bill already been law. While it is correct that the evolution of law is subject to learning from the past events and in keeping with new trends emerging, the law should however not be a deterrent to, but a tool to help citizens enjoy their rights to the fullest and uphold the basic tenets of democracy. Section 12 of the draft Bill is contra vires to constitutionalism and the basic human rights as enshrined in the Humanitarian Charter. Instead of mitigating violence and criminal activities in public gatherings the provisions of Section 12 however serve as a deterrent to holding of gatherings, thus have the net effect of gaging people.
Part of the grounding principles of democracy talks to a separation of powers. We have the police for enforcement of laws and the courts for the interpretation and adjudicating on the law. The draft Bill in Sections 8, 15, 16 and 17 misinforms and misdirects itself by granting on the police an adjudicating role through granting the powers to issue prohibition notices on public gatherings, cordon and search without warrants. The point of departure in lawmaking should always be that citizens hold unalienable rights, one of these being freedom of expression, protest, to speak out and to be heard. If anyone is to curtail the citizen’s enjoyment of their rights, such a request/ application must be subjected to a competent court of law and the veracity of the reasons for such a request weighed against the costs of infringement on a basic human right.
Sections 15,16 and 17 further are contrary to the spirit of Zimbabwe is Open for Business mantra and the objectives of the Transitional Stabilisation Program (TSP). Instead of promoting the ease of doing business these provisions closedown the country, create uncertainty and insecurity. The first casualty of this bill, if it is passed, shall be the cross border trucking industry. Trucks bound for Zambia, Malawi and beyond may opt to bypass Zimbabwe through either Botswana or Mozambique. Botswana is already heavily capitalising on the poor economic situation and business support systems in the country and hence this bill in its current state will be a Godsend.
In the spirit of devolution enunciated by the President and also in accordance with the constitution that recognises 16 languages as equal, l submit that the draft Bill should desist from giving prominence specifically to the three languages of English, Shona and Ndebele. Language of instructing/ giving direction to gatherings by the Regulating Authority should be a locally spoken language in the area and or any other of the 16 constitutionally recognised languages commonly spoken in the area in question. By specifying these three languages it’s as if the law is drafted particularly for urban areas in the country only.
Find below submissions for changes to the draft Bill together with supporting comments.
Section 4. Temporary prohibition of possession of certain weapons within particular police districts
(1) Without derogation from section 28 (“Possession of dangerous weapons”) of the Criminal Law Code, if a regulating authority believes that the carrying in public (whether openly or by concealment in a public place or public thoroughfare) or public display of any of the following weapons or items capable of use as weapons—
(a) catapults, machetes, axes, knobkerries, swords, knives or daggers;
(b) any traditional weapon whatsoever;
– to read – is likely to occasion public disorder or a breach of the peace, he or she may approach a Magistrates Court seeking an order for prohibition within his or her the police district for a specified period of time not exceeding three months the carrying in public or public display of any such weapons or items capable of use as weapons as he or she the court shall specify.
Part of the challenges that were faced in the implementation of the POSA emanated from what most critiques called the overzealous Police Officers misinterpreting and thus enforcing the law wrongly. In many instances, the aggrieved alluded to the fact that personal feelings of the Police Officers and or a third force played a major role in the interpretation and enforcement of the law hence clamping down on civil liberties and freedoms of individuals and institutions. To ensure transparency, upholding of freedoms and the rule of law l recommend that the request for a proclamation for prohibition be tested in a Magistrates court of law and the court if satisfied of the existence a credible risk/ danger make the proclamation.
Section 8. Consultations, negotiations, amendment of notices, and conditions with respect to gatherings to avoid public disorder.
(9) – to read – After considering representations made in the course of a meeting held in terms of subsection (3), if any, the regulating authority may, if he or she on reasonable grounds is convinced that no amendment or condition contemplated in subsection (5) or (6) would prevent the occurrence of any of the circumstances contemplated in subsection (3), issue a make notice to seek a prohibition order notice, giving the reasons and grounds therefor to the convener.
(10) – to read – If the regulating authority decides to seek issue a prohibition order notice, he or she shall in a manner contemplated in the proviso to subsection (7), notify the convener, authorised member and every other person with whom he or she has so met or consulted, of the decision and the reasons and grounds therefor.
(11) – new subsection – The regulating authority shall approach a Magistrates court with an urgent chamber application seeking a prohibition order, in accordance with the Magistrates Court rules
(12) Any person who knowingly opposes or fails to comply with a prohibition order notice or any directions or conditions under which a procession, public demonstration or public meeting is authorised, shall be guilty of an offence and liable to a fine not exceeding level 14 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
Over the years’ numerous institutions and pressure groups, have successfully sought relief from the courts following a ban on their meetings and other processions. In most of these cases, the court applications have been largely academic exercises as the dates and momentum for the meetings would have passed. The consecutive setting aside of the police decisions by the courts is seen as evidence enough that the Police Service is not equipped nor mandated for law interpretation but for law enforcement. For the protection of people’s liberties and rights to protest and have their grievances heard, I believe the mandate to ban any gathering should be left to the competent courts of law.
Section 12. Civil liability in certain circumstances of the convener of a gathering
-remove entire section –
The provisions in this section are contra vires to the spirit of the constitution and fundamental human rights as enshrined in the humanitarian charter. This section serves only to be a deterrent against holding of public gatherings rather than against violence and or destruction of property in these gatherings. To really address and deter violence, damage and destruction of the property there already are laws in the country and the police need to actively investigate and arrest perpetrators. Convenors and their marshals despite their best efforts are not entirely in control of the conduct of the individual bent on criminal activity. Where after the criminal activity has transpired during the course of public meeting police should investigate in accordance with the law, we already have the criminal codification act that covers all manner of criminal conduct.
Section 13. Powers of Police
2 (b) – To read – in a loud voice order them in English and in ChiShona or SiNdebele a language commonly spoken in the area and or any other language recognised by the Constitution, to disperse and to depart from the place of the gathering within a time specified by him or her, which shall be reasonable.
Remove the specification of English, Shona and Ndebele. Such specification gives these three languages supremacy over other languages specified in the constitution furthermore emphasis should be on the use of indigenous language to the area to promote and uphold rights of tradition, culture and language and also ensure understanding. This will also ensure those Police Officers who understand the language and cultures of people protesting redeployed to help them.
Section 14. Persons to carry identity documents
(f) – to read – at a public gathering or a public meeting of a political nature; shall be afforded; by the police officer an opportunity, within seven days thereafter, of producing his or her identity document at their nearest police station specified by in accordance with notice in writing issued by the police officer who required him or her to produce his or her identity document
The costs and burden of the failure by the Police Service to computerise and network its operations should not be passed on to the civilian. One can imagine being stopped in Mutare without your identity documentation and asked to produce it in Mutare yet you stay in Plumtree some 700km away. The most often stated reason for such an approach has been the high cost of follow-ups to check compliance with notices issued by police, this, however, negates the costs and burden on civilians in attempting to comply with such a cumbersome requirement. With a computerised system once notice is issued it becomes available across all networked stations and hence follow-up on compliance is instantaneous.
Sections 15. Cordon and search and 16. Powers of stopping and searching
The POSA was widely loathed because it created a mafia security services in the country. Sections 15 and 16 give the police unbridled powers to enforce a police state and trample on the rights to privacy, freedom of movement, freedom of association amongst a long list of other rights.
In a democratic country, there should not be eventuality for cordon and searches unless otherwise specified for national security. To that end Section 15, Subsection 1 – to read-;
By court order or by decree of the Minister, a police officer of or above the rank of inspector may establish a cordon round any area deemed if he or she considers it reasonably necessary for a period not exceeding 48 hours —
Section 16, recommend that it be scrapped in its entirety. At every port of entry to Zimbabwe, all travellers are subjected to customs protocols and security checks. If anything the government should be improving the capacity of port authorities in conducting their duties. This proposed legislation infringes on the freedom of movement and privacy. Further, it is contrary to Zimbabwe is open for business mantra championed by the president.
If the police roadblocks, abuse and corruption along the country’s highways during the first republic are anything to go by these provisions will only plunge the country deeper into the doldrums of economic recession. This will serve only to make cross-border transporters shy away from the country opting to by-pass the country through either Mozambique or Botswana and is also fertile ground for festering corruption.
Section 17. Powers of police officers in relation to aircraft, aerodromes and airstrips
(2) – to read – A police officer of or above the rank of inspector may without a warrant—
(a) cause a flight to be delayed or an aerodrome and or airstrip be shut down for not more than 6 hours for the purposes of obtaining a search warrant;
(3) – to read – A police officer may with a search warrant –
(a) board any the aircraft that has landed in or is about to depart from Zimbabwe and search it and any person in or upon such aircraft; and
(b) for the purpose of paragraph (a) but subject to subsection (4)—
(i) enter upon and search any the aerodrome or airstrip; and
(ii) remain at any the aerodrome or airstrip for a period not exceeding 12 hours so long as he or she considers it or is reasonably necessary for the proper performance of his or her duties; and
(c) search any person present within the aerodrome or airstrip or in the immediate vicinity of the aerodrome or airstrip; and
(d) seize anything any and all materials specified in the search warrant;
Allowing police or any other security arm carte blanche in the interpretation and enforcement of the law is a slippery slope and is against the constitution. It is tantamount to making the police service a law unto itself. Democracy is by nature a product of checks and balances to promote and protect the enjoyment of liberties by citizens and cooperation’s operating in the country. It is recommended that any search and or seizures be done following a proper court order/ warrant. The costs of security, law and order should not be the sacrifice of democracy.
The grounding of an aircraft and or halting of operations in an aerodrome/ airstrip has financial and other attendant implications. The bill should thus provide for the aggrieved to be able to sue for damages i.e. loss of business through delays caused by the grounding of an aircraft and or stopping of operati0ns in an aerodrome/ airstrip.
Nhlanhla Mlilo can be contacted at email@example.com or on twitter @mlilon