Opinion / Columnist
Mnangagwa borrowing bad law from Apartheid South Africa's statutes
12 Jun 2019 at 11:08hrs | Views
Recently, the government of Zimbabwe, through the Minister of Home Affairs, introduced the Maintenance of Peace and Order Bill to Parliament (MOPA). This Bill, that will replace the reviled Public Order and Security Act (POSA), inter alia seeks to govern public demonstrations and gatherings. It is therefore a very important factor in Zimbabwe's march towards democracy.
What is striking is that out of the 23 in POSA the Bill retains a whopping 20 Clauses as they are word for word. It makes minor amendments to 2 Clauses and repeals only a single provision of POSA. Further key provisions of this Bill are duplicated word for word from the Regulation of Public Gatherings Act No. 205 of 1993 of South Africa enacted before that country attained its independence. This Bill is therefore simply POSA by another name and appears not to have been made with any democratic design in mind.
The Bill completely repeals section 27 of POSA which gave the police power to temporarily ban demonstrations in certain geographical districts.This provision had already been successfully challenged in the Constitutional Court anyway. The other change is that whereas under POSA, the Minister of Defense had the power to authorise the deployment of the army to assist the police during public demonstrations, this power is now vested with the President. The third change is that while under POSA the police had the power to detain any person who failed to produce identity documents, the bill now allows those persons seven days to produce same without the need to detain them.
The Bill still contains a provision for the police to ban possession of certain items which could be used as weapons for a period of three months in any police district. These items include knives, machetes, axes and any "traditional weapon whatsoever". Anybody who is found in possession of these items during the ban is liable to up to six months imprisonment. What the government failed to realise is that some of these items are tools of trade in poorer communities. The bans therefore effectively interferes with the livelihoods of these communities.
The Bill enjoins organisations who want to embark on public processions, demonstrations and public meetings to appoint conveners and deputy conveners for these events. These people are supposed to write and sign all correspondence regarding these events as well as hold necessary consultative meetings with the police. In their notice to the police they are supposed provide their names and addresses. The law does not place an obligation on the part of the police to protect these conveners from anyone who may want to harm them in the performance of their duties as conveners. However, what is fundamentally important is that conveners are made criminally and personally liable for acts done in violation of the law during the events that they would have convened.
Although our law recognises that organisations can be liable to criminal prosecutions this law places criminal liability on the part of the convener personally. Further conveners are personally liable for civil damages brought at the instance of third parties for deaths, injuries or destructions to property that can occur during the demonstrations even if these are not caused directly by them.
To add to their lot these conveners, once convicted in a court of law, can be ordered to personally pay compensation for loss of life, injury or property even in the absence of a civil suit by any affected person. What the law is effectively seeking to do here is to completely indemnify organisations while creating full and sometimes strict liability on the part of conveners who are mostly relatively junior officers in their political parties or organisations. The result is that because of these civil and criminal liabilities to conveners no person may be keen to convene public demonstrations or meetings irrespective of the justice of the cause for these demonstrations or public meetings. Effectively therefore this law bans demonstrations.
The Bill gives the police wide powers to interfere with the demonstrations. Among other things they have the power to change the routes of demonstrations, place conditions as well as halt any demonstration at any time. Further this Bill outlaws demonstrations in the vicinity of the Parliament, courts as well as other protected areas.
However, in the case of Parliament, the Bill allows demonstrations within the precincts of Parliament only where there is written authority of the Speaker of Parliament. It is clear that if the target of the demonstration is the Parliament itself then this consent may never be given. Similarly demonstrations in the vicinity of courts can only be allowed where there is written consent of the Judge President or the Chief Justice. Otherwise no demonstration is allowed within 100 meters of any courtroom!
Apart from their power to halt demonstrations and disperse the participants therein even in the case of a lawful demonstration, the police are given the right to use both lethal and non-lethal force. If a person who is participating in a demonstration or who is interfering with a lawful demonstration kills or injures, attempts to kill or injure or shows manifest intention to injure or kill anybody the police are allowed to use the lethal force of firearms.
Similarly where a participant or non-participant in a demonstration destroys or attempts to destroy property, the police can use lethal force. Unfortunately the law does not specify as to who the lethal force will be used against. Thus for lethal force to be attracted, all what the opponents of an otherwise lawful demonstration need to do is initiate violence. This provision is dangerously prone to abuse by police officers who may side with any of the parties in the clash.
While the law now provides that a person who cannot produce an identity document when called by the police to do so has up to seven days to produce same, it nevertheless makes it a criminal offence for anyone to fail to produce the documents after the period. This completely ignores the fact that failure to produce these document may not be due to the fault of the accused person. For example one may fail to produce the documents because of administrative inefficiencies of the government, or because they are orphaned or because they may be offspring of victims of Gukurahundi who may not have the papers. The law just creates strict liability for them.
The police are given power to cordon certain areas in order to contain or forestall pubic violence and disorder. Once they have established the cordon they can search anyone without warrant. Anyone who leaves or enters a cordoned area is criminally liable and may be jailed for up to six months imprisonment.
MOPA also allows the police to search without warrant any person, vehicle or vessel entering or leaving Zimbabwe. In that search they are allowed by this law to "seize anything". Unfortunately, this law allows stops and searches in respect of any persons and vehicles within Zimbabwe. This is an unnecessary violation of other people's rights.
Perhaps the most controversial part of this Bill is the power given to the President to deploy the army to assist the police during public demonstrations. The question is whether it is even necessary to deploy the army against its own people at all. Firstly, the army is not trained in law enforcement. Secondly, the recent history of Zimbabwe has shown that deployment of the army leads to unnecessary loss of life. After all, the police are well trained in law enforcement including the suppression of violence. They do have and can use firearms if necessary. In the case of Zimbabwe relevant police units which can deal with violence do exist. Further even under the Regulation of Public Gatherings Act of apartheid South Africa, after which the Bill borrows so much, the suppression of violent demonstrations remained the duty of the police and not the army.
Section 59 of the Constitution of Zimbabwe allows people the right to peaceably demonstrate. Although this right is not absolute there is no reason to unduly interfere with it as this Bill does. Therefore this Bill unnecessarily abrogates the fundamental rights and freedoms of the Zimbabwean people. It is a bad law.
Douglas T Mwonzora is an opposition MDC Senator for Manicaland and a practicing constitutional lawyer
What is striking is that out of the 23 in POSA the Bill retains a whopping 20 Clauses as they are word for word. It makes minor amendments to 2 Clauses and repeals only a single provision of POSA. Further key provisions of this Bill are duplicated word for word from the Regulation of Public Gatherings Act No. 205 of 1993 of South Africa enacted before that country attained its independence. This Bill is therefore simply POSA by another name and appears not to have been made with any democratic design in mind.
The Bill completely repeals section 27 of POSA which gave the police power to temporarily ban demonstrations in certain geographical districts.This provision had already been successfully challenged in the Constitutional Court anyway. The other change is that whereas under POSA, the Minister of Defense had the power to authorise the deployment of the army to assist the police during public demonstrations, this power is now vested with the President. The third change is that while under POSA the police had the power to detain any person who failed to produce identity documents, the bill now allows those persons seven days to produce same without the need to detain them.
The Bill still contains a provision for the police to ban possession of certain items which could be used as weapons for a period of three months in any police district. These items include knives, machetes, axes and any "traditional weapon whatsoever". Anybody who is found in possession of these items during the ban is liable to up to six months imprisonment. What the government failed to realise is that some of these items are tools of trade in poorer communities. The bans therefore effectively interferes with the livelihoods of these communities.
The Bill enjoins organisations who want to embark on public processions, demonstrations and public meetings to appoint conveners and deputy conveners for these events. These people are supposed to write and sign all correspondence regarding these events as well as hold necessary consultative meetings with the police. In their notice to the police they are supposed provide their names and addresses. The law does not place an obligation on the part of the police to protect these conveners from anyone who may want to harm them in the performance of their duties as conveners. However, what is fundamentally important is that conveners are made criminally and personally liable for acts done in violation of the law during the events that they would have convened.
Although our law recognises that organisations can be liable to criminal prosecutions this law places criminal liability on the part of the convener personally. Further conveners are personally liable for civil damages brought at the instance of third parties for deaths, injuries or destructions to property that can occur during the demonstrations even if these are not caused directly by them.
To add to their lot these conveners, once convicted in a court of law, can be ordered to personally pay compensation for loss of life, injury or property even in the absence of a civil suit by any affected person. What the law is effectively seeking to do here is to completely indemnify organisations while creating full and sometimes strict liability on the part of conveners who are mostly relatively junior officers in their political parties or organisations. The result is that because of these civil and criminal liabilities to conveners no person may be keen to convene public demonstrations or meetings irrespective of the justice of the cause for these demonstrations or public meetings. Effectively therefore this law bans demonstrations.
The Bill gives the police wide powers to interfere with the demonstrations. Among other things they have the power to change the routes of demonstrations, place conditions as well as halt any demonstration at any time. Further this Bill outlaws demonstrations in the vicinity of the Parliament, courts as well as other protected areas.
Apart from their power to halt demonstrations and disperse the participants therein even in the case of a lawful demonstration, the police are given the right to use both lethal and non-lethal force. If a person who is participating in a demonstration or who is interfering with a lawful demonstration kills or injures, attempts to kill or injure or shows manifest intention to injure or kill anybody the police are allowed to use the lethal force of firearms.
Similarly where a participant or non-participant in a demonstration destroys or attempts to destroy property, the police can use lethal force. Unfortunately the law does not specify as to who the lethal force will be used against. Thus for lethal force to be attracted, all what the opponents of an otherwise lawful demonstration need to do is initiate violence. This provision is dangerously prone to abuse by police officers who may side with any of the parties in the clash.
While the law now provides that a person who cannot produce an identity document when called by the police to do so has up to seven days to produce same, it nevertheless makes it a criminal offence for anyone to fail to produce the documents after the period. This completely ignores the fact that failure to produce these document may not be due to the fault of the accused person. For example one may fail to produce the documents because of administrative inefficiencies of the government, or because they are orphaned or because they may be offspring of victims of Gukurahundi who may not have the papers. The law just creates strict liability for them.
The police are given power to cordon certain areas in order to contain or forestall pubic violence and disorder. Once they have established the cordon they can search anyone without warrant. Anyone who leaves or enters a cordoned area is criminally liable and may be jailed for up to six months imprisonment.
MOPA also allows the police to search without warrant any person, vehicle or vessel entering or leaving Zimbabwe. In that search they are allowed by this law to "seize anything". Unfortunately, this law allows stops and searches in respect of any persons and vehicles within Zimbabwe. This is an unnecessary violation of other people's rights.
Perhaps the most controversial part of this Bill is the power given to the President to deploy the army to assist the police during public demonstrations. The question is whether it is even necessary to deploy the army against its own people at all. Firstly, the army is not trained in law enforcement. Secondly, the recent history of Zimbabwe has shown that deployment of the army leads to unnecessary loss of life. After all, the police are well trained in law enforcement including the suppression of violence. They do have and can use firearms if necessary. In the case of Zimbabwe relevant police units which can deal with violence do exist. Further even under the Regulation of Public Gatherings Act of apartheid South Africa, after which the Bill borrows so much, the suppression of violent demonstrations remained the duty of the police and not the army.
Section 59 of the Constitution of Zimbabwe allows people the right to peaceably demonstrate. Although this right is not absolute there is no reason to unduly interfere with it as this Bill does. Therefore this Bill unnecessarily abrogates the fundamental rights and freedoms of the Zimbabwean people. It is a bad law.
Douglas T Mwonzora is an opposition MDC Senator for Manicaland and a practicing constitutional lawyer
Source - Douglas Togaraseyi Mwonzora
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