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Zimbabwe Court Declares Section of Dreaded Public Order, Security Law Unconstitutional

Umgcinisihlalo weZEC uJustice Rita Makarau

The Constitutional Court has struck off a provision of the dreaded Public Order and Security Act (POSA), which prohibits public protests without seeking police clearance.

According to the privately-owned News Day newspaper, Justice Rita Makarau made the ruling Tuesday in which she noted that Section 27 of the law is open to abuse by the state.

She was quoted by the newspaper as saying, “… In addition to failing to pass the test on fairness, necessity and reasonableness, there is another feature of Section 27 of POSA that I find disturbing. It has no time frame or limitation as to the number of times the regulating authority can invoke the powers granted to him or her under the section.

“Thus, a despotic regulating authority could lawfully invoke these powers without end. This could be achieved by publishing notices prohibiting demonstrations back-to-back as long as each time the period of the ban is for one month or less. It, thus, has the potential of negating or nullifying the rights not only completely, but perpetually. On the basis of the foregoing, it is my finding that Section 27 of the Public Order and Security Act (Chapter 11:17) is unconstitutional.”

An application to repeal this section was made by the Democratic Assembly for Restoration and Empowerment, National Vendors’ Union of Zimbabwe chairperson Stendrick Zvorwadza, Combined Harare Residents’ Association and National Election Reform Agenda in May this year.

Justice Priscilla Chigumba once made a ruling against Section 27 of the Public Order and Security Act in favor of these applicants after a temporary order to ban protests was issued by Officer Commanding Harare Central District Chief Superintendent Newbert Saunyama, who blocked demonstrations over a blanket blockage on the importation of some goods from other nations.

Chigumba said police did not act fairly in stopping the protests.

Section 27 of the Public Order and Security Act state that police can declare a temporary prohibition of holding public demonstrations within particular police districts if a regulating authority for any area believes on reasonable grounds that “the powers conferred by sections twenty five and twenty six will not be sufficient to prevent public disorder being occasioned by the holding of public demonstrations or any class thereof in the area or any part thereof, he may issue an order prohibiting, for a specified period not exceeding three months, the holding of all public demonstrations or any class of public demonstrations in the area or part thereof concerned.

“Whenever it is practicable to do so, before acting in terms of subsection (1), a regulating authority shall cause notice of the proposed order to be published in the Gazette and in a newspaper circulating in the area concerned and to be given to any person whom the regulating authority believes is likely to organise a public demonstration that will be prohibited by the proposed order; and afford all interested persons a reasonable opportunity to make representations in the matter.”

It was an offence for someone to organize a protest in an area where police have banned public demonstrations.

Section 27 of POSA read in part, “Any person who organises or assists in organising or takes part in or attends any public demonstration held in contravention of an order under subsection (1) shall be guilty of an offence and liable to a fine not exceeding $5,000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”