Mopa reincarnation of Posa

AWARD-WINNING human rights lawyer Darlington Marange has torn into the Maintenance of Peace and Order Act (Mopa), saying it is a reincarnation of the discredited Public Order and Security Act (Posa).

In the recent issue of the Journal on Democracy, Governance and Human Rights, Marange writes that Mopa is no different from the repealed Posa which was deemed draconian.

"The Maintenance of Peace and Order Act [Chapter 11:23] (MOPA) was promulgated in 2019 as a new law that repealed the Public Order and Security Act [Chapter 11:17] (POSA). As demonstrated in this paper, POSA was a centrepiece of state-sanctioned repression. A closer analysis of MOPA shows that it is hardly different from POSA," Marange said.

"POSA was enacted when the opposition party, the Movement for Democratic Change (MDC) party, was gaining popularity and challenged Zanu PF's hegemonic dominance of Zimbabwean politics. POSA incorporated many provisions of LOMA (Law and Order Maintenance Act) and introduced even more repressive measures. The legislation became the centrepiece for state-sanctioned repression and was widely condemned by the international community for infringing on freedom of assembly. Members of the opposition and civil society became targets of a broad scheme to restrict the capacity to coalesce, organise, and engage in mass action. In doing so, POSA significantly increased asymmetries of power, as well as the spatial distance between the general public and their constitutionally guaranteed right to assemble," he said.

Under Mopa, many requests by the opposition Citizens' Coalition for Change to hold rallies have been denied, with the partisan police claiming that the party failed to fulfil the requirements of convening a public meeting. The police can still ban a gathering if they think it will cause public disorder under section 8(3).

This, Marange argues, can be used to stifle freedom of assembly.

"The import of section 8(3) of the Act is to give the OIC [police officer-in-charge] the discretion to cancel proposed meetings. As long as there are threats of serious disruption of vehicular or pedestrian traffic, injury to participants in the public meeting or other persons, or extensive damage to property or other public disorder, the OIC is allowed to cancel the proposed meeting. The yardstick to cancel the proposed meeting is the availability of ‘real threat' and this is a fluid and subjective term. It means the OIC has unfettered discretion to cancel proposed meetings. He/she is not bound by the opinion of the parties invited to the consultative meeting," he said.

The Act suggests that the officer-in-charge can order an arrest where conveners of a meeting fail to notify the police of their engagement.

In January 2023, 25 members of the Citizens' Coalition for Change were arrested during a political party meeting for allegedly contravening this section.

Marange notes that an arrest is too aggressive a punishment for people seeking mere assembly.

"The limitation of the right to assemble with a criminal sanction is inconsistent with the international standards for restricting this right. This provision is against international standards of necessity and proportionality in restricting the right to assembly. There is no necessity to limit this foundational right with criminal sanction where there are other available less intrusive measures. Under MOPA, as long as the conveners and the participants fail to notify the police about their meetings, they are liable for prosecution. This provision is also inconsistent with standards that require the responsible authorities to respect and protect all assemblies as long as they are peaceful. This is so regardless of whether conveners complied with the notification procedures. Under MOPA, spontaneous meetings are not exempted from prosecution. There is no defence for attending spontaneous gatherings," said Marange.

He concludes his paper by noting that, Mopa has been used to silence dissent.

"Sections 7(5), 8(3), 8(9), and 8(11) of MOPA are used as weapons by the Zimbabwe Republic Police to close the operational civic space. Section 7(5) is employed to persecute human rights defenders and civic actors through prosecution. It is being used to raid and disrupt CSOs' [civil society organisations] meetings. It has a chilling effect and deters CSO actors from convening public assemblies for fear of arrest and prosecution," he said.