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Did Parliament capture your views on MOPA Bill?

The Parliamentary Portfolio Committee on Defence, Home Affairs and Security Services together with the Thematic Committee on Peace and Security went around the country getting peoples’ view on the Maintenance of Peace and Order Bill.

However, there are concerns from members of the public that their views which they give during Parliament public hearings are often ignored when the respective committees compile reports which they present to the House.

Below is what Defence, Home Affairs and Security Services Portfolio Committee chairperson Honourable Levi Mayihlome presented to Parliament as what people said during the public hearings.

Honourable Levi Mayihlome (Umzingwane):  Mr. Speaker Sir, may I present to this House the joint report of the Portfolio Committee on Defence, Home Affairs and Security Services and the Thematic Committee on Peace and Security on the Maintenance of Peace and Order Bill [H. B. 3, 2019].

Mr. Speaker Sir, the maintenance of peace, order and security has been a major issue of concern amongst states since the 20th Century.  Statutory measures implemented in Zimbabwe to contain peace and order and security include the Law and Order Maintenance Act (LOMA), Chapter 1107 of 1960.  The Public Order and Security Act (POSA) Chapter 11:17 of 2002 and more recently the Maintenance of Peace and Order Bill [H. B. 3, 2019] which was gazetted on 19th April 2019.  The Bill seeks to repeal POSA and realign it to the Constitution in terms of Section 141 of the Constitution and Standing Order No 135 of the National Assembly upon gazetting.  The Maintenance of Peace and Order Bill stood referred to the relevant Committees to consult stakeholders and compile a report for presentation in the House.  It is against this background that the Portfolio Committee on Defence, Home Affairs and Security Services and the Thematic Committee on Peace and Security conducted stakeholder consultations on the Bill and compiled this report.

Methodology

The Portfolio Committee on Defence, Home Affairs and Security Services and Thematic Committee on Peace and Security conducted a breakfast meeting with the Permanent Secretary of the Ministry of Home Affairs and Cultural Heritage with the purpose to unpack the Bill.  The two committees then conducted joint public hearings on the Maintenance of Peace and Order Bill from the 3rd to the 7th June 2019.  The committees split into two groups which held the public hearings as follows:

The first group was led by the late Hon. O. Mguni, may his dear soul rest in peace.  Their first port of call on 3rd June was Mashonaland Central at Tendayi Hall in Bindura and the town hall in Mvurwi.  On the 4th June, they were in Mashonaland East and had public hearings at Zihute hall in Murewa and Mbuya Nehanda Hall in Marondera.  On 5th June the group conducted public hearings at Queens hall in Mutare and Gaza hall in Chipinge while on the 6th June, the public hearings were in Masvingo at Nemanwa Business Centre and Council Hall in Gutu. On 7th June, the Committee was in Harare at City Sports Centre and at Chitungwiza Aquatic Complex.

The second group visited the southern and western parts of the country and commenced its work in Midlands Gokwe business centre on 3rd June 2019 before going to the Civic Centre Hall in Gweru.  On 4th June, the Committee was in Matabeleland South commencing at Mtwakazi Hall in Filabusi and Esigodini Training Centre.  On 5th June 2019, the team was in Iminyela Hall in Bulawayo and also visited Lupane at the Town Council Hall in Matabeleland North.  On 6th June, the team was in Chinotimba hall in Victoria Falls and on the 7th June we winded up the public hearings at Rimuka Hall in Kadoma.

The public hearings were attended by war veterans, youths, pensioners, business persons, government officials, lawyers, farmers and residence associations as well as representatives of people living with disabilities, civic society organisations and members of the public in general.  In addition, the Committees conducted a call-in consultation programme in the Senate Chamber on the 10th of June, 2019.  The programme was broadcast live on Star FM Radio Station.  Furthermore, the Committees considered written submissions which were received from various stakeholders including the Zimbabwe Council of Churches, the Community Youth Development Trust, the Zimbabwe Human Rights NGO Forum, the National Association of Non-Governmental Organisations (NANGO), The Women of Zimbabwe Arise (WOZA) and the Zimbabwe Congress of Trade Unions amongst others.  Members of the Portfolio Committee on Defence Home Affairs and Security Services and the Thematic Committee on Security are thankful to all the stakeholders who attended and participated during the public hearings as well as those who made written submissions.  Admittedly, the committees recognise the invaluable support rendered by SAPST to facilitate the public consultations process as well as the Permanent Secretary for Home Affairs and Cultural Heritage for unpacking the Bill.

The submissions received from stakeholders; the majority of stakeholders welcomed the Maintenance of Peace and Order Bill and noted that repealing of POSA and aligning it with the provisions of the Constitution was long overdue.  Other stakeholders particularly those who attended public hearings expressed mixed views on the Bill.  Some were of the view that the current environment is not conducive for the enactment of the Maintenance of Peace and Order Bill as the country is too polarized along political party lines.

Additionally, some participants who attended the public hearings in Kadoma, Gweru and Mutare noted that while the Maintenance of Peace and Order Bill sought to repeal POSA, it still retained several provisions of the later and LOMA.  Furthermore, some stakeholders especially civic organisations and written submissions contended that the Bill was inconsistent with the freedoms of association, assembly and expression guaranteed in Sections 58 and 61 of the Constitution.  On the other hand, at public hearings, those who supported the Bill emphasised that the rights were not absolute and must respect the rights of others, the protection of private property and human life.  They saw nothing wrong with the police enforcing the law in terms of Section 219 of the Constitution.  The following key issues were raised by stakeholders regarding each of the clauses of the Bill.

On the preamble, stakeholders proposed the addition of the following: “whereas the Constitution guarantees the freedom of assembly and association as given in Section 58 and the freedom to demonstrate and petition in terms of Section 59 and in terms of Section 86 of the Constitution, these rights can only be limited in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society.  Taking into account all the relevant factors including those stated under Section 86 (2).  Now, therefore, be it enacted by the Parliament and the President of the Republic of Zimbabwe as follows:”.

On Clause 2 – interpretation, a proposal was made for upward review of the number of people consisting of a public meeting 15 to 50 or 100 at a public hearing conducted at the City Sports Centre in Harare.  This would enable individuals intending to convene public meetings to hold preparatory meetings.  However, in other places, this was not raised as an issue at all and in fact, they did not comment on this clause.

On Clause 3 – the regulating authority, several stakeholders welcomed the requirement to notify the regulating authority of a pending public meeting as it facilitates the maintenance of peace and order by the police, including resolving conflicts that may arise at public meetings.  Additionally, stakeholders noted that it is necessary for the police to regulate public gatherings or demonstrations in order to minimise disruptions of business, damage to property and protection of those citizens who are not keen to demonstrate as provided for in Section 219 of the Constitution.

Furthermore, stakeholders advised that only those with something to hide were against this Clause.  However, it was noted that this Clause effectively empowers the police officer in command of each police district who is regulating authority to sanction a public meeting and it is, therefore, likely to be abused.  It was argued that this violet the right to demonstrate and assemble as provided for in Section 58 of the Constitution.  That is a proposal made for a clear definition of the notification so as to avoid mistaking it for seeking approval to hold a public hearing.

On Clause 4, the temporary prohibition of position of certain weapons within particular police districts – stakeholders largely called for the wholesale outlaw of carrying dangerous weapons.  Some participants at public hearings conducted in Victoria Falls, in Kadoma, Esigodini, Murehwa, Marondera and Mutare called for mandatory imprisonment of anyone who is found in possession of dangerous weapons.  However, some stakeholders cautioned against the over-regulating at the carrying of dangerous weapons is already inconsistent with the local culture and practice.  Additionally, some stakeholders noted that weapons such as machetes and axes were also tools in rural areas and therefore prohibition could disrupt normal everyday activities.  Others observed that the prohibition of possession of these weapons would affect those earning a living through the manufacturing and selling of products such as machetes, axes and knives.

The Committee noted and concurred with the amendment that was made by the Minister of Home Affairs on insisting on the involvement of the magistrate’s courts.  Mr. Speaker Sir, the appointment of responsible officers in case of public meetings.  Stakeholders supported this Clause which requires an organisation intending to hold a public meeting to provide the regulating authority with the names and addresses of responsible officers to act as conveners as there is nothing private about the public meeting.  Furthermore, concerns were raised especially in written submissions that this provision violets the right to privacy by the conveners and might expose them to abuse and intimidation by police.

Notice of possessions, public demonstrations, and public meetings – while some stakeholders supported the seven days notice of a public meeting, others complained that the period is too long and in most cases, people want to convene public meeting as a matter of urgency, for instance, to demonstrate against a hike in fuel prices.  A suggestion was made to reduce the notice period to 48 hours.  The arguments as to what should be the next step if the police and conveners fail to agree and as to who would have to appeal and where and as well as the time limit.  The Committee concurs with the amendment that any person who knowingly fails to give notice, postponement, delay or cancellation or calling off a gathering be liable to a fine not exceeding level 10 or to imprisonment not exceeding a period of one year.

Mr. Speaker Sir, consultations, negotiation, amendment of notices and conditions with respect to gatherings to avoid public disorder;  participants at public hearings conducted in most areas noted that the handing over of an inconvenience notice to the convener by the police will guarantee social order and the society’s safety and also avoid the clashing of events.  This was generally agreed to by most stakeholders.  Mr. Speaker Sir, exemption of certain gatherings from sections 5, 6, 7 and 8 – some stakeholders in Gweru and Mutare called for the exemption of disabled persons and visually impaired persons from the requirement to notify the regulating authority of pending meetings as they usually move in large numbers considering that some need aids or assistants and translators.

Some participants also noted that there is a need for the Bill to specify when and how meetings such as church gatherings, family gatherings, sporting activities should be exempted from sections 5, 6 and 7 and 8 since some are likely to be used for political agendas.  Other stakeholders observed that the Bill should clearly provide a list of those organisations which should be exempted from these sections.

Mr. Speaker Sir, on Clause 10 – gathering in the vicinity of Parliament, courts and protected places.  Whereas some stakeholders noted that the required distances for gatherings away from Parliament, that is 20 metres, courts and protected areas – 100 metres were too long, others proposed that a uniform distance of 100 metres prohibition apply to gatherings near all institutions in order to prevent damage of property and disruption of public business.  Additionally, stakeholders advocated that the same distance apply to immediate functional public places such as hospitals.  Other stakeholders observed that this prohibition undermines the right to petition Parliament provided for in Section 149 of the Constitution.

Nevertheless, there are others who felt that the distances so proposed were in order and should be supported.  The Committee concurs with the amendments that have since been effected by an originating Ministry on this Clause.

Clause 11 – Appeals – there was a general agreement that the final arbiter for the conveners appeal should be the courts.  However, some members of the public suggested that the Bill should clarify and provide the steps to be taken by the convener if not satisfied by the court’s ruling.  It was also noted that the Bill should explain the appeal process including the duration processes in which a mater can be settled.

On Clause 12 – Civil liabilities in certain circumstances of convener gathering – stakeholders overwhelmingly supported the appointment of a convener to facilitate accountability for loss, damage, injury or death during demonstrations.  However, some noted that it would be unfair for the convener to solely shoulder such responsibility as he or she can be a mere representative of a certain organisation.  Thus it was proposed that a provision be made under this Clause to also make the organisation and funders liable under certain circumstances for losses, damage, injury or death which occurs during public gatherings.  It was also the majority’s view that the Clause should provide for the punishment of individuals who damage property and engage in other criminal activities during public hearings.

On Clause 13 – on the powers of the police, some stakeholders agreed that the police should regulate public gatherings to prevent participants from deviating from the agreed parts in order to ensure that peace and order prevail in society.  In addition, there was general consensus on what the police should use in the event that a public gathering becomes disruptive.  Whilst some supported the use of firearms, with live ammunition to deal with violent demonstrations to enable the police to protect themselves, other stakeholders were dismayed by this provision as it results in the loss of life.  It was suggested that the police use rubber bullets, teargas, button sticks and water cannons.  In addition, it was proposed that a provision be added to require the Minister of Home Affairs and Cultural Heritage to present a detailed report to Parliament on circumstances under which firearms with live ammunition were used.

Clause 14, Persons to carry identity documents

While there was general agreement that carrying identity documents facilitates easy identification in case of accidents and controlling crime, the inaccessibility of such documents was raised as a major issue of concern. There were arguments that in Matabeleland Province, most youths do not have birth certificates as some of their parents perished in the Gukurahundi era as an illustrative example.  Some stakeholders cited a survey conducted in 2018 which revealed that 34 percent of children in Zimbabwe do not have birth certificates. It was also noted that moving around with identity documents is a risk as it is difficult to retrieve them if lost, including payment of 10 dollars mandatory penalty search fee.   It was, therefore, recommended that the Ministry of Home Affairs and Cultural Heritage takes measures to ease the conditions of accessing identity documents including the scraping all fees before the implementation of this provision.  On the other hand, some stakeholders viewed the requirement for carrying identity documents to be unjustifiable and reverting to the colonial practice provided in the Law and Order Maintenance Act.  Others also argued that this clause is in violation of freedom of movement provided in Section 66 of the Constitution and as concluded in the Supreme Court judgment in the case of Elliot vs Commissioner of Police and another 1997 (1) ZLR315 (S).

The convener Mr. Speaker Sir, he only becomes liable for damage or loss of property, injury or death of a person resulting from a public gathering in certain circumstances outlined in Clause 12. These include the failure by the convener to notify the regulating authority, public meeting or inciting persons taking part in a gathering to engage in conducts which amount to public disorder and breach of peace.

Observations of the Committee

Mr. Speaker Sir, a considerable number of people in Zimbabwe do not have identity documents and therefore, the stringent requirements required by the Registrar-General’s Office to access documents make it an impediment for people’s liberty, thus the 7 days period that was suggested seems to be short. The Committee recommended that this be increased to 14 days.  According to Section 219 of the Constitution, the functions of the police service including detecting, investigation and detection of crime prevention and preserving the internal security of Zimbabwe and protection and security of the lives and property is the responsibility of the police.

Also in terms of Section 213 of the Constitution, only the President, the Commander in Chief of the Zimbabwe Defence Forces has the power to authorise the deployment of the defence forces and to determine the operational use of these forces and deploy them in support of the police. So the Committee resolved that this clause is already provided for in the Constitution.

Stakeholders complained that the Bill was written in one language which is English while some required the Braille format. The Committee noted that there is poor publicity as evidenced by poor attendance in some provisions and lack of awareness on the provisions of the Bill.  Unfortunately, both Members of Parliament and the public tended to politicize the public consultation processes.

Recommendations

Mr. Speaker Sir, the Committee recommends the involvement of the magistrates courts as the regulatory authority.  The Committee recommends that any person who knowingly fails to give notice, postponing delay or cancellation or calling off of a gathering be liable to a fine not exceeding level 10 or to imprisonment not exceeding one year.

The Committee also recommended that the police should use button sticks, rubber bullets, tear gas, and water cannons to disperse violent demonstrations and unlawful public gatherings or meetings. The Committee also recommended that the police should indiscriminately arrest on the spot all persons who commit criminal offences or engage in disruptive and violent behaviour during lawful and unlawful public demonstrations, gathering, processions and meetings.

Mr. Speaker Sir, the Government should translate all Bills and Acts into the 16 languages stipulated in Section 6 of the Constitution to facilitate understanding and effective participation of all stakeholders in the law-making process by December 2019. Parliament in collaboration with other stakeholders should intensify educational and public campaigns on Bills, public hearings and other programmes in both urban and rural areas by December 2019.

Mr. Speaker Sir, in conclusion, the Portfolio Committee on Defence, Home Affairs and Security Services and the Thematic Committee on Peace and Security exhorts the Ministry of Home Affairs and Cultural Heritage in conjunction with other Government departments to expeditiously implement provisions of the Bill once passed by Parliament and assented to by the President. Stakeholders at all levels are also encouraged to abide by the law at all times for the maintenance of a peaceful, orderly and a secure Zimbabwe. I thank you, siyabonga, tinotenda, twalumba, toboka, reaboka.

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Daniel Chigundu

Daniel Chigundu is a male journalist in Zimbabwe and has been practising since September 2009. He used to the editor for The Business Connect (newspaper) in Harare, has his own news website Tourism Focus which is biased towards the tourism sector. Daniel is also working with Magamba Network on their project called Open Parliament where they do live coverage of Parliamentary activities on Twitter and Facebook. He is currently the secretary-general of the Zimbabwe Parliamentary Journalists Forum, is a member of Zimbabwe Small Broadcasters Association and a board member of Digital Communication Network. He holds a Diploma in Communication and Journalism from the Christian College of Southern Africa (CCOSA), a certificate in Youth leadership training from the Friedrich Ebert Stiftung (FES), a certificate in Citizen Journalism from Magamba Network and is currently a first-year student at Zimbabwe Open University studying for a Bachelor of Arts Honours in Ethics and Organisational Leadership.

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