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Zimbabweans still have a right to protest

by Veritas
02 Aug 2020 at 09:24hrs | Views
Trade unions, political groupings and civil society organisations called on the public to take to the streets on July 31 to protest against economic mismanagement and public corruption.

Some of the calls for protests were couched in intemperate language, and so were threats by members of the government and ruling party to suppress any demonstrations forcibly.

The main reason given by government spokespersons for suppressing the demonstrations apart from alleging that the organisers are "terrorists" bent on forcible régime change is that demonstrations will breach the national lockdown and other measures introduced to combat the Covid-19 pandemic.

In this Constitution Watch, we shall look at how far the government can legitimately restrict the right of people to demonstrate peacefully during the Covid-19 epidemic.

Public emergency?

The first point to make is that, contrary to the claim by Justice minister Ziyambi Ziyambi, a state of public emergency is in not force.

The president has power under section 113 of the constitution to declare a state of public emergency, but he has to do it by proclamation in the Gazette and it must be approved by a two-thirds majority of the Senate and the National Assembly sitting together.

The president has not published such a proclamation.

What happened is that on March 17 the president declared in terms of the Civil Protection Act that a state of disaster existed in Zimbabwe because of the worldwide Covid-19 pandemic.

Declarations of states of disaster give the government very few powers, as explained in our Bill Watch 14/2020 of April 14, and in any event they last for only three months, so the state of disaster is no longer in force.

Then on March 23 the Health and Child Care minister not the president published SI 77 of 2020, in which Covid-19 was declared to be a formidable epidemic disease for the purposes of the Public Health Act.

This declaration gives the minister again, not the president power to make far-reaching regulations under section 68 of the Act to deal with the disease.

In our Bill Watch 14/2020 we outlined how far-reaching the regulations can be, but it is noteworthy that although the Act permits regulations to restrict the movement of persons and the convening of public gatherings, it does not specifically permit regulations to prohibit the holding of public demonstrations.

Indeed, so important is the right to demonstrate, as we shall explain, that the Act could not prohibit them.

The constitutional right to demonstrate

Section 59 of the constitution provides that:"Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully."

The right to demonstrate, together with freedom of expression guaranteed by section 61 of the constitution, is one of the lynchpins of democracy because it allows groups of likeminded people to bring their views, even controversial views, to the attention of the public.

It affords an additional avenue for people to express and propagate their opinions, apart from voting in elections or writing in the press.

The right must not be limited or restricted lightly.

This is laid down in section 86 of the constitution, which allows fundamental rights to be limited by law, but only if the law is "fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom".

A limitation on a fundamental right should not impose greater restrictions on the right than are necessary [that word again] to achieve the purpose of the limitation (section 86(2)(e) of the constitution).


To be protected by the constitution, demonstrations must be peaceful.

This means they must not be violent, but it does not mean they must be entirely passive.

All public demonstrations, other than those comprising one or two people, contain an implicit threat of violence.

The fact that demonstrators obstruct the passage of pedestrians and vehicles does not make them violent even though pedestrians and drivers may fear that if they try to force their way through, the demonstrators will turn violent.

Nor does the fact that demonstrators shout slogans or create a loud noise make them violent even though people in the neighbourhood are disturbed by the noise.

Disturbance, in other words, is not the same as violence.

Finally, if a few demonstrators resort to violence while the majority remain peaceful, the demonstration by the majority remains protected by the constitution.

From what we have said, it is quite clear that the government was obliged by the constitution and by its international obligations to permit demonstrations against corruption to go ahead last Friday.

This is so even though the police may not have been notified of the demonstrations in terms of the Maintenance of Public Order Act.

Any such notification would be a formality in any case because the security services were well aware of the planned demonstrations.

The security services must do what they can to ensure that the demonstrations proceed peacefully.

If violence occurs to such an extent that law and order is seriously endangered, then the security services must try to persuade the demonstrators to disperse and, only if that fails, may resort to minimum force to disperse them.

Demonstrators, on the other hand, must remain peaceful in order to be protected by section 58 of the constitution.

Because of the Covid-19 restrictions imposed under the Public Health Act, they should wear masks and maintain social distancing if possible.

They should also, if possible, stay in groups of up to 50 people.

Unless the threat to public health is really serious and immediate, however, the security services should not break up the demonstrations because some demonstrators fail to wear masks or keep one metre apart.

Many people around the world have been celebrating the life of John Lewis, a distinguished American civil rights activist and friend of Martin Luther King. Let us remember his words:"When you see something that is not right, not fair, not just, you have to speak up. You have to say something; you have to do something. Never ever be afraid to make some noise and get in good trouble, necessary trouble."

Source - the standard
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