Right to demonstrate is not absolute, says Mangwana

FORMER Cabinet Minister Paul Mangwana has said, in an interview with 'The Herald', that the right to demonstrate is not absolute.

Read full interview below:

Tichaona Zindoga (Herald reporter): First of all, you were part of the constitution-making process in Zimbabwe that came up with the 2013 charter which provides for the right to demonstrate and freedom of assembly, among other fundamental rights. Now, it has lately become a contentious issue after the violence and looting we have seen in the past few weeks. Could you just give us a background about these rights and freedoms and the parameters within which they should be enjoyed in Zimbabwe and internationally?

Paul Mangwana: The right to demonstrate, to petition, to express yourself is an internationally recognised right, it is not only in Zimbabwe. Most constitutions recognise that citizens have a right to demonstrate, the right to petition, but they must do so peacefully.

That right is not absolute. It has checks and balances because you must also recognise that the right to demonstrate entails also the right not to demonstrate. While you are exercising your right other citizens also have their rights which should be protected. Unfortunately, this right has been abused in Zimbabwe.

International organisations and many commentators are focusing on the rights of the people who are demonstrating without taking into account the rights of the people who do not want to participate, then you end up with people's property being destroyed.

So every right has limitations. Our Constitution, while it provides for the right to demonstrate, has a clause which says that that right must be used, taking into account the rights of those other people who are not part of it. And this is where we are meeting.

Those who are demonstrating, if you decide to walk into a street and then you close that street, how are you also determining the right of the other person who has a right to move in the street? So every right must be enjoyed, taking into account the rights of those other people who are going to be affected by your right.

This is where the courts come into today. While you are enjoying the right to move and demonstrate, you're demonstrating in a street where someone else has a right to move freely. How do you balance the two?

So the Constitution provides you with the right to petition, to move, to demonstrate but it also provides other people with the right to move freely. And this is where the State comes in – to balance out between the two: your individual right and the right of the general public.

TZ: But we have seen on many occasions a certain group/s approaching the police for clearance, which in the event that it is denied they then go to the High Court which usually grants that order to march or demonstrate. Ideally, what should be the role of these two institutions, the institution of police and the institution of the court? If you have read certain sentiments around the latest so-called Nera demonstration, some people have been questioning why the courts would allow a demonstration that was likely to descend into violence to go ahead . . .

PM: The police ensure that if you are to demonstrate, when you demonstrate you don't endanger the public interest. The courts look at the arguments presented by a certain body. I think what is important is to train the police. When they deny somebody a right to demonstrate, they must have solid ground and present their cases very strongly before the court.

The courts simply look at whether you have presented a case denying that right to demonstrate properly. So you can't fault the courts if you bring a weak case, you have to bring a strong case. The police or the State has to say, this right to demonstrate, because Posa (Public Order and Security Act) is the one which limits the right to demonstrate.

But you must justify it before the courts. If you don't justify it properly you will be denied. They will be allowed to demonstrate. So we have to look at it on its merit. We have to train our officers-in-charge who deny the right to petition. They must give good reasons. If there are no good reasons, the courts will not accept.

TZ: But some people are saying there are glaring loopholes within this law in this provision to demonstrate. What can be done to plug those loopholes? We have seen incidents of looting, vandalism and arson being carried out in the name of these demonstrations which the courts would have granted.

PM: Those are criminals who must be arrested. The law is not wrong. The judges are not wrong. It is the criminals who are wrong and any criminal must be arrested. That is exactly what should happen. If people have been given a right to petition, to march and so forth by the courts and then among them are criminal elements, they must be arrested. The police must arrive and arrest them.

If you think the circumstances don't allow a proper petition or demonstration, we must convince the court. We must do our homework and convince the court that this is not right.

TZ: But in terms of the law, we have mentioned Posa and the supreme law in itself. Do you think both are adequate to address both the fundamental right and the occurences such as violence?

PM: I think the law is okay, because the Constitution provides the parameters under which people can petition and demonstrate. Hence, POsa outlines how you can have the right to demonstrate. If someone is unhappy they go to the courts. What I think is lacking is the State's preparedness to substantiate and convince the court why a particular petition and demonstration should not happen.

We need to train our police officers to apply their minds and convince the courts because if we remove the role of the court, then we expose the system to the State. We don't want to do that. The State must come to the court as a neutral arbitrator and say "if these people go on with this kind of demonstration, it can lead to this". And be convincing.

The courts must also apply their minds impartially and look at the national interest, the interest of the general public and the interest of those who want to petition. But if people are coming to say, "we want to petition against corruption and we want to march" let it be peaceful.

If there is evidence that the marches are not peaceful, then such marches should be prohibited, looking at the political temperature in the country. Let us also remember that most of these people do things out of mischief. I am clearly aware that the recent marches were supposed to put Zimbabwe on the SADC agenda. After that (managing to have Zimbabwe on the Sadc agenda) they then put Zimbabwe on the international agenda and they go home.

They want to destroy the image of the country. They want to destroy investment in the country. They are saying we want the economy to improve, but they know the image and integrity of a country is what brings investment.

So if you are saying Zimbabwe is ungovernable, Zimbabwe has no future, how do you bring investment? How do you bring the jobs? These are political overtures and our courts should not pretend that there is no politics to these events.

TZ: Perhaps, lastly, there are a lot of people in particular informal businesses and vendors who lost their property and some were even injured in the recent skirmishes, what recourse do they having lost limb and property thanks to the demos?

PM: They have a right to sue the organisers. They have a right to sue Nera, they must exercise their right. They must go to lawyers and sue. When you are given the right to organise a demonstration, you make an undertaking that if anyone else is injured, I am responsible. Unfortunately, our people have not utilised their right and I am encouraging them to reach their lawyers and they must sue them.