MAINTENANCE OF PEACE AND ORDER BILL [H. B. 3, 2019]
Second Order read: Adjourned debate on motion on the Second Reading of the Maintenance of Peace and Order Bill [H. B. 3, 2019].
Question again proposed.
HON. MASENDA: Thank you Mr. Speaker Sir for giving me the opportunity to contribute towards the Maintenance of Peace and Order Bill. I would like to make comments using common law knowledge because I am not a lawyer. So, you will allow me to go astray at moments because I will not be able to put it in legal language as may be expected. I will go clause by clause.
If I go to Clause 5, I would like to refer clause 5 to its origins from Section 58 of the Constitution subsection 2, that people organising demonstrations – no person may be compelled to belong to an association or to attend a meeting or gathering. We saw last time that people were being compelled to do what they did not want to do, people were barred from coming to work – [HON. SIKHALA: Ah! Nonsense] – People were forced not to go to work. People’s buses were burnt down, shops were destroyed in the name of demonstration and that should not be allowed.
Clause 7 gives ample time for the police on how to provide security to the public. The convener – [HON. SIKHALA: Inaudible interjection.] –
THE ACTING SPEAKER: Order, Hon. Sikhala!
HON. KASHIRI: I think the behaviour of Hon. Sikhala is unbecoming and it is unparliamentary. He should withdraw his statements – [HON. MEMBERS: Inaudible interjections.]-
Hon. J. Paradza having walked across the floor and made verbal confrontation to Hon. Sikhala
THE ACTING SPEAKER: Hon. Sikhala, I will give you the floor to debate, so you do not need to worry. You need to respond to the points that are being raised when you debate. Do not try to assist the contributor – [HON. J. PARADZA: Inaudible interjection.] – Order, order in the House! – [AN HON. MEMBER: We cannot have that young boy threatening our Vice Chairperson. How are we expected to respect debate n this House when we are being threatened. He must go out. This is not a boxing ring. Ngaabude panze. If it were MDC, you were going to chase us out. Todakuona fairness munoumu Mr. Speaker.] – Hon. Paradza, I am requesting you to behave, you are an Hon. Member. The way you have actually stood up and approached the other side is unparliamentary –[HON. MEMBERS: Inaudible interjections.]
*HON. CHIBAYA: On a point of order! Hon Speaker, I believe that this is an Honourable House. The words that have been said by Hon. Paradza that he will make Hon. Sikhala to slim in minutes. Hon. Speaker, as it is, we cannot go ahead without the Hon. Member withdrawing their remarks. If the statement is not withdrawn then we are not proceeding. If you want to make it difficult, we can also make it much more difficult than what it already is. So, that is my point of order that the Hon. Member should withdraw his statements because should they not withdraw, it will cause a lot of difficulties in this House and we will make sure that we put a stop to the debates. We cannot be threatened by papers.
THE ACTING SPEAKER: I am being advised here that it is Hon. Sikhala who started uttering unparliamentary language, so if you want me to ask Hon. Paradza to withdraw, it has to start with Hon. Sikhala.
HON. SIKHALA: Mr. Speaker Sir, the procedure and process of this Parliament is that when a point of order is made, you do not give reference to something that has not been raised in the House. You are trying to give a ruling on Hon. Chibaya’s point of order based on something that has no evidence. Can the Speaker and the Chair help us on the unparliamentary words which this Hon. Member has said.
THE ACTING SPEAKER: I am coming to that Hon. Sikhala, may you just do the honourable thing by withdrawing your statements then I will come to that point you are raising.
HON. SIKHALA: Which words do want me to withdraw – [HON. MEMBERS: Inaudible interjection.] – I never said nonsense!
THE ACTING SPEAKER: You said that to Hon. Kashiri. May you just withdraw then I will also call this other one to withdraw?
HON. SIKHALA: Mr. Speaker, you are asking me to withdraw the air, I withdraw.
THE ACTING SPEAKER: Hon. Paradza, may you withdraw the words you said to Hon. Sikhala?
*HON. J. PARADZA: Thank you Mr. Speaker, I withdraw my statement but he will get thin.
*HON. CHIBAYA: Hon. Speaker, you told him to withdraw but he said I withdraw and he will get thin. What is the meaning of that? That should be corrected.
THE ACTING SPEAKER: Hon. Paradza, make a withdrawal without any qualification.
HON. J. PARADZA: Thank you Mr. Speaker, I withdraw. – [HON. MEMBERS: Inaudible interjections.] –
THE ACTING SPEAKER: May you lower your voices Hon. Members – [HON. MEMBERS: Inaudible interjections.] –
HON. MASENDA: For any damage to property, for any killings, burning of property that might occur. I also want to add that the convener – [HON. MEMBERS: Inaudible interjections.] – I also would want to add the fact that despite holding the convener accountable for all the actions – [HON. MEMBERS: Inaudible interjections.] –
THE ACTING SPEAKER: Lower your voices Hon. Members.
HON. MASENDA: We are aware that every demonstration has got somebody who is funding it. The funder must also be held accountable for the destruction and death of anyone who will be killed– [HON. MEMBERS: Inaudible interjections.] –
THE ACTING SPEAKER: May I remind you that you have only five minutes to go.
HON. MASENDA: I also support the fact that Clause 11 – the convener should approach the magistrate court -[ HON. MEMBERS: Inaudible interjections.] – Iwewe ndiwe ani? Shut up. – [HON. MEMBERS: Haaaaa!]
THE ACTING SPEAKER: Hon. Member, may you address the Chair?
*HON. MUSABAYANA: Mr. Speaker Sir , may you protect the Hon. Member who is debating. They are making a lot of noise and he cannot be heard.
HON. CHIKOMBO: Mr. Speaker Sir, the Hon. Member must unreservedly withdraw the statement in which he said ‘shut up’ that he has attributed to other Hon. Members for the sake of this House’s progress. That is unparliamentary.
THE ACTING SPEAKER: Hon. Member, please do not use insulting words.
HON. MASENDA: I withdraw my statement – [HON. MEMBERS: Inaudible interjections.] – Iwewe, iwe – [HON. MEMBERS: Inaudible interjections.] –
HON. MUSHORIWA: Mr. Speaker Sir, the Hon. Member is supposed to support the Portfolio Committee Report. What he is doing is misrepresenting and going in tangent to the report that he is supposed to second. I think you need to guide him accordingly.
HON. MASENDA: I second that …
HON. CHIKOMBO: On a point of order, he should withdraw.
HON. MASENDA: I withdraw my statement.
HON. C. MOYO: He said shut up to another Hon. Member. It is unparliamentary.
HON. MASENDA: Hon. Members should avoid having to confront me – [HON. MEMBERS: Inaudible interjections.] -Let me continue.
I second Clause 12.
HON. NYATHI: I propose that his time be extended by 10 minutes.
HON. CHIBAYA: I object.
THE ACTING SPEAKER: Can you continue.
HON. MASENDA: I support Clause 12 of the Bill which provides civil liability for the convener in the event that – [HON. MEMBERS: Inaudible interjections.] – I support Clause 12 where it holds civil liability for the convener in the event that there is damage to property and people have been killed.
If I go to Clause 18, I do support the fact that the President, according to the Constitution has power to deploy the security forces in the event that the demonstrations have erupted into commotion or violence. The President should have power to deploy the forces to control any violence because from the last experience, we saw that police stations we burnt. Toll gates were burnt and police were killed. So the President should have power to deploy the forces in the event that peaceful demonstrations have erupted into commotion.
I go to Clause 20 which provides that people should be searched in the event that violence or a robbery has taken place. The police should have power to search for criminals because people might have committed a crime and hide away from the police.
I also support the Committee’s recommendation on the temporary prohibition of possession of certain weapons within particular police districts. The police should however have control and maintain peace in the area which they control.
Clause 7 of the Bill provides seven days notice for a public meeting. I support this because there is need for the police to organise themselves in order to protect not only the demonstrators but members of the public because within the demonstrators, there might arise a conflict and people might be found fighting each other within the same demonstrators. I support the fact that this should be maintained.
I also support the sentiments expressed in Clause 13 of the Bill. In order to control public violence, remember Hon. Speaker Sir, we need to maintain peace and order. The Government has got a constitutional right to protect its citizens from demonstrations.
HON. SIKHALA: On a point of order Mr. Speaker, the House does not have a quorum.
HON. BITI: Hon. Speaker, on the 23rd May, 2013, this House adopted a new Zimbabwe Constitution. That new Constitution sought to create a definitive break with the past. A past of attrition, conflict and dispute between Zimbabweans. In the preamble of that Constitution, the people of Zimbabwe resolved to abide by the tenets of the Constitution to commit themselves to build a united just and prosperous nation founded on values of transparency, equality, freedom, fairness, honest and the dignity of hard work. Hon. Speaker …
HON. KASHIRI: On a point of order, the Hon. Member Biti according to his dressing, I am wondering whether he is wearing a bra or petticoat behind his garments. Is he? – [HON. MAMOMBE: This is abuse of women. What do you mean by bra and petticoat?] – [HON. KHUMALO: Bra racho riri pai? Where is the petticoat? Tobvisa here hembe dzacho?] – [HON. MEMBERS: Inaudible interjections] –
THE TEMPORARY CHAIRPERSON: Order, Hon. Members – [HON. MEMBERS: Inaudible interjections] – Hon. Members, order! Hon. Kashiri – [MDC HON. MEMBERS: Singing – Into oyenzayo, siyayizonda!] – Members from my left, you know very well that in Parliament it is not allowed to sing – [HON. MEMBERS: Inaudible interjections] – May you kindly withdraw your words – [HON. MEMBERS:Inaudible interjections.] – the reason why you have to withdraw your words is because they are very sexist, are we agreed? So, may you kindly withdraw. Hon. Tsunga, may you please take your seat, I have not recognised you – [HON. MAMOMBE: Hon. Kashiri must be chucked out.] – [HON. MEMBERS: Inaudible interjections.] –
HON. KASHIRI: Madam Speaker Ma’am – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: I do not think we want to progress Hon. Members. You ask for someone to withdraw and now – [HON. MEMBERS: Inaudible interjections.] –Hon. Kashiri, can you please withdraw?
HON. KASHIRI: Madam Speaker Ma’am, yesterday Hon…
THE TEMPORARY SPEAKER: Can you first withdraw Hon. Member.
HON. KASHIRI: Hon. Chinotimba was wearing the same…
THE TEMPORARY SPEAKER: Hon. Kashiri, can you please withdraw.
HON. KASHIRI: I am not refusing to withdraw.
THE TEMPORARY SPEAKER: First withdraw before you do that.
HON. KASHIRI: I will withdraw my statement but I want to make a comment.
THE TEMPORARY SPEAKER: No, you are not going to comment.
HON. KASHIRI: I withdraw.
HON. MUSHORIWA: On a point of order Madam Speaker – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order Hon. Members. Hon. Tsunga, Hon. Sacco and Hon. Musikavanhu, may you please respect this House.
HON. MUSHORIWA: Madam Speaker, the Chair of the Speaker is one that needs to be respected and when the Speaker says to a Member, withdraw and a Member refuses to withdraw, I think that is the highest contempt of Parliament and disrespect of the Chair. It is wrong Madam Speaker for a Member to treat you in that manner because you are a woman. All the male speakers who were there were not treated to that order. To that extent Madam Speaker, the only thing to protect the integrity of this House, that Member should leave this House.
THE TEMPORARY SPEAKER: Thank you very much Hon. Mushoriwa for your point of order. Let us be clear here when we give decisions in this House. I am the Chair here and I am the one who is supposed to make decisions. Let me explain to you something; the first thing you requested me was for him to withdraw and he came and withdrew. For you to then give me another instruction – [HON. MEMBERS: Inaudible interjections.] – Let me explain to you, especially Members from my left, if you then come here and then you are there to give me another instruction, I am sorry, you are not in that capacity to do that. Thank you very much – [HON. MEMBERS: Inaudible interjections.] – Maybe you did not see that, you will read your Hansard, he withdrew – [HON. MAMOMBE: Aramba kuwithdrawa.] –
THE TEMPORARY SPEAKER: Hon. Kashiri, I am sure there was noise and maybe for them to know that you withdrew, may you kindly go back to the microphone for the sake of the House to proceed.
HON. KASHIRI: Sorry Madam Speaker, I did not hear you.
THE TEMPORARY SPEAKER: I said may you kindly withdraw again, they did not hear you withdraw.
HON. KASHIRI: But I did – [HON. MEMBERS: Inaudible interjections.] – Madam Speaker, if the House is quiet, I will honourably withdraw, only if the House is quiet.
THE TEMPORARY SPEAKER: Hon. Kashiri, may you please get out of the House [HON. MEMBERS: Hear, hear.] –
Hon. Kashiri was escorted out of the House by the Sergeant-at-Arms.
HON. BITI: Hon. Speaker Ma’am, can I have assurance that I am starting now in terms of the time.
THE TEMPORARY SPEAKER: It is alright Hon. Member.
HON. BITI: Thank you Hon. Speaker ma’am. Hon. Speaker Ma’am, in 2013, this country came up with an extremely decent Constitution, a Constitution that gave to the people of Zimbabwe a very strong Bill of Rights which in various sections, in particular, Section 66 of the same, gave to Zimbabweans a new genre of rights that are known as political rights. In terms of Section 67, every Zimbabwean has a right to belong to a political party, to support a political movement or a political cause. Section 66 provides for the right to freedom of movement. Section 59 gave the people of Zimbabwe the unfettered right of every person to demonstrate and present petitions peacefully.
Not only that Madam Speaker Ma’am, you have a right to dignity that is codified in terms of Section 51 of the Constitution of Zimbabwe. These are fundamental rights which were embodied in terms of the Constitution of Zimbabwe. It is regrettable, Madam Speaker, that four years after the enactment of the Constitution of Zimbabwe, we are belatedly trying to bring in a Bill before this august House that seeks to harmonise the Constitution with the laws, but the sad thing about this Bill Madam Speaker, is that it is a Bill that is worse than the Bill it is seeking to repeal, namely the Public Order and Security Act (POSA).
POSA itself was modeled along the 1960 Law and Order Maintenance Act (LOMA), which LOMA was modeled on serious fascist laws made in South Africa that were meant to suppress the rights of black people, in particular the 1956 Suppression of Communism Act. Madam Speaker, when LOMA was enacted in 1960 the then Chief Justice of Southern Rhodesia, Sir Murry resigned in protest.
Madam Speaker, the nationalists who were prosecuted in terms of LOMA read like a who is who of our great liberation heroes, including the likes of Morton Malianga, including the likes of Lookout Masuku. What is regrettable Madam Speaker, is that the MOPA that we seek to pass in this august House is actually worse off than the 1960 LOMA and I want to say that one of the reasons why people took up the armed struggle was for the cause of one man, one – woman – one vote, but it was also a cause to fight the notorious and heinous LOMA. MOPA is worse than LOMA.
I want to give you a comment Madam Speaker, a comment from Veritas. Veritas is one of the respectable human rights organisations in this country. This is the comment by Veritas on MOPA. It reads as follows – ‘The draft Bill is not new wine in an old bottle. It is the same old wine in the same old bottle with a new label stuck on it.’
Madam Speaker, this is regrettable. The right to demonstrate, the right to freedom of movement, the right to freedom of expression is a right that is so sacrosanct and without these rights, there is no human being. Without these rights, there is no modern society which is why section 21…
HON. NDIWENI: On a point of order, Madam Speaker.
THE TEMPORARY SPEAKER: Order Hon. Biti. Hon. Ndiweni, what is your point of order?
HON. NDIWENI: The speakers Madam Speaker, this side we cannot hear. They look like they have malfunctioned.
THE TEMPORARY SPEAKER: Thank you for that point of order. All Hon. Members who are seated at the back, may you kindly come and use the speakers here but I am sure administration will look into that.
HON. BITI: Madam Speaker, the first fundamental problem with MOPA is the philosophy behind MOPA. MOPA behaves and pretends that the right that is sought to be protected is the right of public peace or order. There is no such right in our Constitution. There is no such right as public peace or public order. The right that is there is the right to freedom to demonstrate, the freedom to express oneself and the right to freedom of movement. So MOPA’s philosophy is fundamentally flawed.
Madam Speaker, I want to refer you to Public Order and Security Act of Singapore and Hong Kong. These are two laws which are made with the recognition that the right that seeks to be protected is the right to freedom of expression, freedom of movement and the right to demonstrate. So in Hong Kong and Singapore for instance, when the police fear that a public meeting would be out of hand, they are actually obliged by law to put helicopters, cameras and extra police to protect public gathering, whereas here we seek to prescribe and to take away people’s rights. That is the first fundamental flaw.
The second fundamental flaw Madam Speaker, is the conflection by the Bill of public meetings and public processions. Madam Speaker, why should a Government, why should authorities have any problems with public meetings? With a public procession, it is different because people are moving on public roads and affecting other people, but with a public meeting where people meet in a hall, in a stadium, the State should have no business. So the Bill should deconflect the marriage and conflection of public meetings and public gatherings.
Conflecting public meetings and public gatherings is unconstitutional and infringes the right of the people codified in Sections 59, 66, 67, 52 and 51 of the Constitution of Zimbabwe.
The third thing we have a problem with is the periods of notices. Why should we give seven days notice for public processions and five days notice for public meetings? Those time periods are repressive and are typical of fascism. You will not find similar provisions in any other law in the world, Madam Speaker.
Number four and this is a matter of great concern to us, it is the militarisation of policing services in this country, Madam Speaker. The constitutional duty of policing is on the Zimbabwe Republic Police. Since 1980 until 1st August, 2019, the Zimbabwe National Army has never been brought to assist the police in policing. The police have always been able to contain and to man normal policing services. So we are totally against the provisions in this Bill that seek to militarise normal policing in Zimbabwe. We do not accept that and given, what happened on 1st August, 2018, what happened in January, 2019, wherever you have police services being militarised, there will always be blood on the streets of Harare. So, we do not accept the provisions in the Bill that seek to militarise police service in Zimbabwe.
The next issue we have a problem with, Madam Speaker, is the strict liability imposed on organisers in respect of both criminal and civil damages. We have a constitutional provision in section 56 of the Constitution that protects the right to equal protection of the law, Madam Speaker. We have got section 68 of the Constitution of Zimbabwe that says that every individual is entitled to a fair and speedy determination of his civil obligations. So, you cannot criminalise and also seek to sanction an individual who is seeking to assert his right in terms of the Constitution of Zimbabwe.
Madam Speaker, this Bill should be withdrawn. This Bill is fascist, this Bill infringes the right of the people of Zimbabwe codified under section 59 of the Constitution of Zimbabwe. This Bill Madam Speaker, infringes the right of the people of Zimbabwe codified under Section 59 of the Constitution of Zimbabwe. This Bill Madam Speaker, is an attempt to put lipstick on a crocodile. You cannot do that. You cannot put lipstick on a crocodile. I thank you very much Madam Speaker.
^^HON. NGULUVHE: Giving all respect to the Chairperson and everyone present here, I would like to support the move that has been laid right now by Hon. Mayihlome on the Peace and Order Bill that we have as a country. The first thing Madam Speaker is that in this country, for us to have progress, there should be peace. Therefore, for peace to prevail, people should respect the country’s laws…
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): On a point of order Madam Speaker. Madam Speaker, unless if am not supposed to respond to what he is saying, I cannot. If I can have somebody who can translate for me – [HON. MEMBERS: Inaudible interjections.] – [AN HON. MEMBER: I can do the translation for him. He is saying the Bill is a non-starter. The author must be arrested.] –
HON. SIKHALA: On a point of order Madam Speaker. The point of order that has been raised by the Hon. Minister of Justice, Legal and Parliamentary Affairs is an insult to the majority of minority languages in this country. Madam Speaker, the Leader of Government Business is the Minister of Justice whose duty and role is to uphold the Constitution. He is the person whose custody of the Constitution in this Parliament rest on his laurels. For him not to respect a constitutional provision where we have 13 official languages in our country is an insult to some of the minority language speakers in our country. May the Hon. Minister withdraw his point of order? The Hon. Minister cannot raise a point of order that he knows is patently unconstitutional. He knows that his point of order is unconstitutional, may he please withdraw his unconstitutional point of order because many minority speakers in this House feel insulted by withdrawing the language of other people. I thank you Madam Speaker.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam Speaker, we are here and what is required is for me to take notes and respond. I am surprised that the Hon. Member is saying I should sit there, I cannot – [HON. MEMBERS: You will get a translator.] – That is exactly what I said. Can the Hon. Member not insinuate that I am insulting when I am saying, can I have an interpreter if he cannot speak in a language that I understand. The Constitution does not say if I cannot understand a language, I should be forced to listen to that language – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Hon. Nguluvhe, may you please take your seat. Thank you very much. The Hon. Minister said he needed a translator since he could not understand. Unfortunately, Hon. Nguluvhe, I am going to give you an opportunity when we get headphones, unless you want to proceed. That is at your own will. For now, we want to get some headphones and the Hon. Minister will be able to get a translator.
HON. NGULUVHE: Madam Speaker, I will try to speak the language you want me to speak with but I was going to be more comfortable using my own language. However, because you want us to and for the sake of progress, I will try to speak in English.
THE TEMPORARY SPEAKER: Hon. Nguluvhe, I have said the Hon. Minister would be having some headphones very soon. May you kindly take your seat.
HON. NGULUVHE: Let me finish.
THE TEMPORARY SPEAKER: You want to finish. Thank you, you can kindly proceed.
HON. NGULUVHE: Madam Speaker,
THE TEMPORARY SPEAKER: Hon. Nguluvhe, may you please approach the Chair?
HON. NGULUVHE: No.
THE TEMPORARY SPEAKER: May you please approach the Chair? – [Hon. Nguluvhe approached the Chair.] Thank you – [HON. MEMBERS: Inaudible interjections.] – Order Hon. Members.
HON. NGULUVHE: Thank you Madam Speaker for giving me the opportunity to make a few comments on the Bill. I would want to make some few comments on the Bill. Before I make the comments, I would want to say to my colleagues, for any development to take place, there is need to have peace in the country. For us to have peace, we must live in tranquillity. However, when we look at the Bill of Rights, it gives us rights to demonstrate, rights to use whatever language or whatever you do but also it does not take those rights away from the person you are demonstrating against. We must bear that in mind if we are to grow as Zimbabweans.
I am going to look at Clause 6 which talks on the appointment of the responsible officers in case of public meetings, the regulating authority. I concur with what was given in the report but however, it must be borne in mind that in case of problems, it might be necessary that for the police to carry out investigations, in case there has been noise, it is proper that people must submit their names and addresses. This assists the investigating officers – there are some people who might want to infiltrate a gathering which is lawful but they would be having bad intentions ,that is why I said it is proper we should know who are the people organising that meeting.
Coming to the issue of gathering in the vicinity of Parliament, Courts and protected places, the first thing is for us to find out why we are giving a limit in terms of distance. Why do we come up with this requirement that we should be 500 m away. My belief is that if we are not careful …
HON. CHIDZIVA: I have noted that the Minister of Justice said he wanted to respond to the Bill. This Bill that we have should be with the Minister of Home Affairs. I want to find out which language he would want used because the Bill lies with the Ministry of Home Affairs
HON. CHIBAYA: On a point of order Madam Speaker. It is procedural that when a Member raises a point of order, we expect a ruling from the Chair.
THE TEMPORARY SPEAKER: I did say point of order overruled.
HON. CHIBAYA: We did not hear that.
THE TEMPORARY SPEAKER: Oh, sorry I said point of order overruled.
HON. NGULUVHE: I was coming to the point of gatherings and protected places. So, we must first of all find out why we came up with the issue of the distance. The reason is that sometimes amongst that gathering you can have some elements who might be subversive and might be a danger to the building or those people occupying that building. However, my recommendation is that these people must be given access if they are to present their petition, they must be allowed to go and present their petition without any hindrance. However, let us maintain the distance of 100m but we must also allow them to have the right to go and present their petition.
Coming to the powers of the police – I will just dwell on the use of fire arms. We ought to understand what we mean by violent. demonstrations and to understand when and when not to use a fire arm. If we define violent demonstration and peaceful demonstration, we will then come to a conclusion that when but however my understanding is that you can only use a fire arm when your life or the life of someone is in danger. So, I believe that whoever is using a fire arm must understand the rules of engagement. So, they should understand when and when not to use the fire arm. However, we must also bear in mind that currently our police force are ill equipped to deal with violent demonstrations. I believe they are ill equipped because they have not been given modern equipment. The reason why they do not have modern equipment is that there are countries where we can go and buy that equipment in the western world but unfortunately due to sanctions, you cannot buy that equipment. So, my appeal is that this august House must give adequate funds to the Ministry of Home Affairs so that they buy the proper equipment to deal with violent demonstrations.
Now coming to the issue of carrying identity documents, I cannot understand why one should not carry around his/her identity in case of an accident, you need to be identified. However, with the current security situation, terrorism worldwide, how do we identify who is who? We are neighbours here, people in Malawi speak Nyanja, Zambia they speak chewa, Mozambique they speak Portuguese (putukezi), Botswana, tswana and if I do not have an identity card and pretend I am Zimbabwean and I speak the South African language, how then do you identify me? There are people also who might have been identified as known terrorists by Interpol and without their identification documents, they cannot be identified. So, I support the idea that yes, you do not have an I.D. but you can be given time to go and bring that I.D. But where the police are suspicious, I think they should demand the I.D because you can let loose terrorists.
On the issue of when defence forces may assist the police, I think we all agree that if we are to follow the Constitution, it is there I think in Section 213, which spells out when the President can call in the defence forces to assist the police. We should all agree that we cannot have a situation whereby we say the President must come first and seek permission from Parliament before deployment. That is spoken by people who are civilians who are not security conscious. You cannot let a country down while you go to Parliament to seek permission. If circumstances force you to quell the situation, you have to deploy then come and inform Parliament. My suggestion therefore is that we have to use – the President is given powers unless if we were to change the Constitution.
In conclusion, people must understand that even the so called civilized countries which follow the constitution for example America, Trump sometimes even calls the national guard to assist the police. So, I see no reason why we should have a problem of allowing our President to defend. As such, I would recommend that we pass this Bill without further ado because we need this for the development of this country. I thank you.
THE TEMPORARY SPEAKER: I have a security announcement here. If there are any Members who have parked their cars along 3rd street, may you kindly go and remove them and park them along Nelson Mandela because there is no security there.
HON. S. S. KHUMALO: Thank you Madam Speaker Ma’am for giving me this opportunity to add a few points on why this Bill on MOPA must be passed. First of all, let me refer to the submissions that were made by our Committee led by Gen. Mayihlome on the submissions that were made to us when we went to seek their views about the MOPA Bill. The views of the public were that generally, MOPA was supposed to be passed and become part of the law.
Then, there were dissenting views. The dissenting voices were particularly concerned about what I perceive were political drivers. So, generally the Bill must go through and I know very well that the Bill concerns the laws that have been talked about for maintaining peace and order in the country, but this Bill is to repeal POSA which has been found out of step with our Constitution. Therefore, this Bill indeed must be passed because if we do not do that, we are saying POSA must remain in place. Generally, this is what is supposed to happen.
I know people would say the Bill infringes on rights but if you look at the preamble, it speaks very well about the rights and what a view, that was guaranteed by our Constitution to the citizens of Zimbabwe. It then goes further to say those rights, yes they are but they have limitations arising from the general requirements of law and order. Whilst the rights are there they must be enjoyed by everyone. There are restrictions that will come from common law that people must behave themselves orderly and in a proper manner. Therefore, it means that the Bill must go through.
There is the issue of regulating authorities. In any society, there is a regulating something starting from the basic family unit. There is a regulating something which is perhaps the father and in his absence, the mother and in the absence of the mother, the elderly child or something along those lines. Therefore, the Bill must contain a clause which says there must be a regulating authority. Anyone who says no regulating authority would be purporting that we must live in anarchy. So, that authority must be there.
On the notice for processions, public demonstrations and public meetings – in any environment, when you have a gathering of people who are going to do a demonstration, make a procession and things like that, you will know that even at a wedding, you will see many people who will be very happy and they can fight. It is necessary that the regulating authority is informed in time so that it puts mechanisms of monitoring to maintain peace, order and security of those that are participating as well as those that will not have to do with the demonstration, procession or something like that.
We have seen some of these demonstrations – when the people plan demonstrations, you will meet boulders on the roads and tyres being burnt on the roads and things like that and those people will be demonstrating yet there are some members of the same community who have nothing to do with that demonstration. Therefore, it has to be monitored. Law and order and peace must be guaranteed by the law enforcement agents being able to plan on how to handle any situations that might disturb peace. Remember, this thing of MOPA is all about maintaining order and peace in our country in a security situation.
On the consultations and amendment notices and anything that concerns these gatherings – the notices are supposed to be there. Everyone agreed and where we were, people accepted that the notifications must be there and people must accept where it is said that the gathering may not take place, albeit it has to be that regret or something like that must be given by a magistrate other than the regulating authority. So, I believe that it is fair; fair considerations will be made and the regulation is going on okay.
On carrying of identity cards where people say there will be constrained freedoms of our population because somebody will have asked them to carry their identify cards, I fail to understand how this freedom is being infringed with because in any case people have to carry their identity cards. If they do not have identity cards because he is Gukurahundi victim, they can go to their head man, ask the head man to write something that I know this person and put it in their pocket so that at least there is some form of identity on the person. Those peoole who are saying ah, ah, it is because they do not understand the need for an orderly society. If somebody does not have an ID card, let us say there is no law and order; it is to say somebody gets killed and instead of identifying the person immediately, the person will be identified through calling the public and announcing on the radio and so on. Therefore, it should be natural that once you are given an ID card, you carry it with you. Why should you be given an ID card to keep it home, for what purpose? You need it to be with you so that you can be easily identified both in times of peace and in times of trouble.
The next issue is when defence forces may be asked to assist the police and the authority to deploy them. Defence forces Madam Speaker, are a very important sector of the security of any nation. Any nation needs defence forces to be there and they are used to deal with situations where the police may not or would have said they are not capable with dealing with a situation. I just want to refer to some wild demonstration that happened in Bulawayo in January 2019. The level of anarchy and destruction that accompanied those demonstrations is beyond anybody’s imagination. You would say there really was a certain force other than the ordinary civilians that I know. There was a certain force behind those demonstrations. Why, because I just ganged it along with the level of destruction that accompanied it.
Most of western shops in Bulawayo were left with no groceries, I gather those people were accompanied by some vehicles that were being driven by hard core people, I will not say criminals but hard core people who were going around destroying the mechanisms, security doors and opening and others going around telling people to go and loot. After that discussion, up to today some of the shops are not functioning and definitely in a situation like that you would want to put the defence force to assist the police because those people were beating the police officers. They were highly mobile that it was like they were acting on operational orders to cause mayhem in the city. Once that happens and the scale of destruction overwhelmed the police such that the defence forces may need to come in. If our country was being attacked, there is a difference between a normal demonstration and a demonstration that is beyond the capacity of the police. When the defence forces go to support the police, it is not like it is somebody who whistles or something like that. There is an assessment of the situation and what measures need to be taken and then the defence forces will be destroyed.
Lastly, I believe this MOPO Bill needs to be considered with the seriousness it deserves, not polarising it on partisan lines but for the benefit of our country, we need that because we must be an orderly society, a society that will conduct itself in a proper manner. I thank you.
*HON. RUNGANI: Thank you Madam Speaker. I want to contribute on this MOPO Bill. Firstly, I want to comment on the numbers that make a gathering. It is when more than 15 people gather, the Committee agreed to a number of 50 to 100. I support this clause because if we do not notify the police violence will be rampant. We are not doing this for you and me but for the population of Zimbabwe. We want our citizens to be looked after by the police because when we meet we do not know who will do what. So, police must be monitoring these gatherings. I urge those that want to hold gatherings or meetings to notify the police.
It is being said that if you want to hold a gathering you must notify the police so that the police will know. In case something happens, people will ask if any form of violence arises. If I do not have evil intentions, why should I find it difficult to notify the police? I support this clause. The stakeholders that attended our public hearings said that police must work to protect citizens.
*HON. CHINOTIMBA: On a point of order.
THE TEMPORARY SPEAKER (HON. MAVETERA): What is your point of order?
*HON. CHINOTIMBA: My point of order is that when Hon. Biti was debating all members were listening. We have an Hon. Member who was asked to go out of the House. The vice president of the opposition does not have respect. If the vice president of the opposition speaks we listen but when it is our turn as the ruling party they make a lot of noise – [AN HON. MEMBER: We withdraw our protest Hon. Speaker.] –
*HON. RUNGANI: Thank you Hon. Chinotimba for protecting me.
THE TEMPORARY SPEKAER: There is a vehicle AEX 2963 Nissan Navara, may the owner go and attend to your vehicle, thank you.
*HON. RUNGANI: I proceed by saying on weapons, there are weapons that are used in rural homesteads daily like axes; the law is not barring you from carrying such weapons but it is saying if there are certain areas where people are busy robbing using arms such as those instruments, then a law will be put in place that such weapons cannot be carried around because people are being murdered. The law says that should we be under siege from such people who carry such weapons, notices will be put up at schools and order is given that machetes, axes and such other weapons cannot be carried during a specific time and whoever will be flouting that law will be arrested. This will protect all our children and our relatives.
Furthermore, there is also a law that says if people want to demonstrate and you have infringed their rights, that is not the position, all we are saying is you should demonstrate peacefully. If one is selling their tomatoes and you force them to join your march, you must be arrested because you would have infringed on other people’s rights, therefore you should be arrested.
There is also a law that deals with a situation where there will be warring factions, the President can call the army, he cannot summon Parliament first, he has a right to deploy the army. With those few words, I thank you.
HON. MAVHUNGA: Thank you Madam Speaker for giving me this opportunity to make my contribution to the Bill under discussion. I would like to first raise my concern regarding the conflation of duties between the Minister of Justice, Legal and Parliamentary Affairs and the Minister of Home Affairs. A point was raised by an Hon. Member that when the Bill went for deliberations, it was actually under the Committee for Home Affairs but when the Bill is being debated in Parliament, the person who is taking notes is the Minister of Justice, Legal and Parliamentary Affairs. Even if we look at the amendments that are in the Bill which are proposed to be made, those amendments are actually being made by the Minister of Justice, Legal and Parliamentary Affairs. So, I just wanted to raise that conflation of duties.
THE TEMPORARY SPEAKER: According to the Constitution, Section 107, says that Ministers have got collective responsibility; therefore they can assign each other to do certain roles. The Hon. Minister has been assigned to take charge of that Bill, that is why he is taking charge. Even in terms of the amendments of the Bill to PLC, it was the Hon. Minister, who is also the Leader of the House who was in charge of that. So, let us give him the opportunity to be able to do that since he is the one who has been assigned.
HON. MAVHUNGA: Thank you Madam Speaker for that clarification. That fact had been brought to our attention. We would have expected that the Deputy Minister would then be responsible for that.
THE TEMPORARY SPEAKER: The reason why I even overruled it, I thought we are all priviledged to be having copies of our Constitution and that we also uphold our Constitution. So, go and read Section 107 and you are very much clear of how responsibilities are carried out.
HON. MAVHUNGA: Thank you Madam Speaker. I will proceed to make my contribution in respect of the Bill. I am also concerned that this is a very critical piece of legislation which is about to be passed by this House. This Bill that is about to be passed has serious ramifications when it comes to our image in terms of the international community. So, I submit that the provisions of this Bill have an impression that they are going to create to the outside world. So, it is important that this Bill must be taken with the seriousness that it deserves.
The Bill that is before us is intended to repeal another piece of legislation, the Public Order and Security Act. The important impression that is created is that this Bill must actually be better than the Public Order and Security Act. POSA itself was passed around 1998/1999 and the general understanding was that it was actually a repressive piece of legislation. What we then expect from this Bill is that we have a law which is going to be more democratic in terms of Act setting civil liberty. However what we have is a law which is actually curtailing civil liberties to the extent that we are more comfortable in having POSA as a law than the MOPA Bill. It is actually worse than the POSA.
I would like to congratulate the drafters of this Bill for plagiarising regulations made by South African Apartheid in 1993 to suppress the independence of South Africa. What they did was just to photocopy the regulations of Public Governance Act 205 of 1993. This is the law that is before us, word for word, page to page. This law was passed by South African regime under De Klerk to suppress the independence of South Africa and this is the law, in this day and age, which we are now accepting to be part of our legislation. This is a dangerous precedence. The law that was passed in 1993 in South Africa was a culmination of other repressive laws that had been passed in South Africa, for example, the 1950 Suppression of Communism Act, Internal Security Act 74 of 1982. These are the laws that are contained in that piece of legislation which was passed in 1993 in South Africa. We then go to that law and photocopy page by page and we make it part of the alleged new dispensation.
Madam Speaker, I want to thank the Minister of Justice, Legal and Parliamentary Affairs for making certain concessions in relation to the issues of carrying of traditional weapons. It is very important that in rural areas, there must be sufficient communication. If you are going to impose a ban, we have people who are held ex-communiqué because of Cyclone Idai and a lot of other reasons. Thank you Minister because we admitted that they must expand the modus of communication to those areas. This is a positive because if you are going to restrict the communication to newspapers, to radios, there are some areas in Zimbabwe which do not have those modes of communication.
Moving to one of the contentious Clauses that requires a regulatory authority to request information or a list of organs of a political structure, if you are going to have a meeting which is not a public gathering, there is a clause which requires that you must submit a list of names of people who are attending that meeting to the regulating authority. We do not intend to pass a law which will be challenged in the court the following day. It is very clear Madam Speaker that this law is unconstitutional. You cannot just demand that people give you their details. This is a private gathering. We are not talking of a public gathering. A private gathering of a political party at someone’s house and then you say you are supposed to submit a list of names of people who are gathered at that house. It contravenes Section 58 of the Constitution, the right to assemble and it can be abused. We know who the regulating authority is.
THE TEMPORARY SPEAKER (HON. MAVETERA): You said which Section?
HON. MAVHUNGA: Section 58 of the Constitution, the right to assemble.
The other problem with this provision is that it can be abused. We know who the regulating authority is. The regulating authority is usually the DISPO of a particular area. The moment you submit a list of people to them, history has taught us that that can be abused in hunting down political activists because you have provided information. Even if those people do not attend those meetings, the mere fact of you submitting that list – then we have that problem. So this is unconstitutional and it is my submission that it should not form part of the Bill.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): May you show me where in the Bill it talks about a list of everyone at a meeting.
HON. MAVHUNGA: Madam Speaker Ma’am, although I am not obliged to respond to the Minister at this juncture, I will respond to the question. If we go to Clause 5 (8) – it provides that for the benefit of the Minister; for the purpose of helping a regulatory authority to ascertain that a meeting is not a public meeting as defined in Section 2 because it is asserted to be a meeting of any organ or structure of a political party or other organisation, the regulatory authority may request the political party or other organisations concerned to submit to it from time to time or at such regular intervals as it may require a list of members of the organs or structures of the political party or organisations who are entitled to attend the meeting concerned – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order, order, order Hon. Member! I am sure it is saying ‘may’, it is not saying ‘must’. Is that so? You can proceed.
HON. MAVHUNGA: Yes Ma’am. But that political provision in itself even if it says ‘may’, it is unconstitutional – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order, Hon. Members.
HON. MAVHUNGA: Even if it says ‘may’, it actually means ‘shall’ when it comes to a regulating authority. What it then means is that if you fail to supply the information, then you will have a problem with ….
HON. MADZIMURE: On a point of order – with all due respect, you cannot debate with a member. You cannot continuously ask a member to clarify something when the Minister is there. I think it is not your responsibility. You have to listen to members debating. It is not proper for you to interfere with the debate.
THE TEMPORARY SPEAKER: Who is doing that? Hon. Madzimure, who is interfering?
HON. MADZIMURE: Madam Speaker Ma’am, you asked him to clarify this and clarify that.
THE TEMPORARY SPEAKER: For the record, may you please tell me what I told him to clarify? We do not misinform the House.
HON. SIKHALA: I want to help him.
THE TEMPORARY SPEAKER: You do not need to help him. He is the one who stood up.
Hon. Madzimure, may you please tell me what I told him to clarify.
HON. MADZIMURE: Madam Speaker, you interjected and said, it says ‘may’.
THE TEMPORARY SPEAKER: I said did you say may or must.
HON. MADZIMURE: I was listening and I also listen carefully when people are debating. I am just saying….
THE TEMPORARY SPEAKER: That is why I never even interjected and I said may you continue. That is exactly what I said. Thank you very much.
HON. MAVHUNGA: Madam Speaker Ma’am, my submission is that any provision which requires a member to submit a list of names is unconstitutional whether peremptory or discretionary – [HON. MEMBERS: Inaudible interjections.] –
I will move to the requirement which is contained in Clause 7 – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order, may the Hon. Member be heard in silence.
HON. MAVHUNGA: The convener of a meeting must give a notice of a gathering or a procession.
This is clearly in violation of the said section that I have referred to – Section 58 of the Constitution. I am aware and cognisant of the fact that there are limitations to those rights but the way this Bill is limiting these rights is tantamount to a serious affront to the objective that we want to achieve. It does not recognise what we call spontaneous gatherings.
When demonstrations are made, there are what we call spontaneous demonstrations which just erupt because of the emotions of the moment. I want to give a simple example…
THE TEMPORARY SPEAKER: You are left with five minutes Hon. Mavhunga.
HON. MAVHUNGA: Thank you Madam Speaker. I want to give a simple example; people have just been fired from employment and they want to demonstrate against their employer and you are telling them to go to the police station, give a notice that you will come back after five days when they are still gathered and they are at their workplace.
There must be a provision for spontaneous demonstrations which are usually based on the emotions of the moment at that particular time. The South African Law that they photocopied actually allows spontaneous demonstrations. There is a provision in that law that it shall be a defence that the gathering concerned was spontaneous but in our law in 2019, we are not recognising that. In 1993 in South Africa, they actually recognised that.
The other problem is, what is the purpose of the notice? It should be for purposes of logistics. It must not appear as an application to the regulating office. It is a notice. If I tell you that I am coming, I do not have to seek permission that I will be there but the way it has been interpreted and the way it is structured in the Bill is that you are actually making an application to the police for you to allow the demonstration. If you fail to give notice, then it becomes a criminal offence. This is where the problem is.
In conclusion, there is Clause 8 of the Bill which empower the regulatory authority to waive, vary, cancel or ban a procession or demonstration. Again as I have indicated, the police must not have power to cancel a demonstration. There is a regulator and a convener. If we do not agree on the route that is going to be taken by a demonstration, there must be a third party who will come to assist us and in this case, the police is the judge and the jury. In other words, they make the decision. If we do not agree, they become the arbitrator. There must be a neutral party who will come in between us but the way it is structured is that if I do not agree with the regulator, then conclusively the regulator then makes a final determination. That is unconstitutional.
Finally, I submit that anyone who wants to limit a right is the one who must approach the court. Anyone who wants to limit a right is the one who must approach the court. In this case, the regulator if they want to limit the right to assemble or demonstrate, they are supposed to approach the courts, not the convener. It should be the other way round. In a democratic society, the one who wants to limit that fundamental right then is the person who is aggrieved and has to approach the court. The way the Bill is structured is to the extent that if I am a convener I have the right which is being limited, then I am the one who has to go to court to enforce a right which I have already been granted by the Constitution. This creates problems.
Madam Speaker, in general these are some of the legal issues and challenges that are in our Bill. If we are going to pass this Bill the way it is then obviously the impression is, we are just putting a cosmetic approach to the changes that we or you undertook as the alleged new dispensation. Otherwise, the international community will not be hoodwinked by these cosmetic changes. In fact, the international community is going to take note of the serious infringements to the rights of individuals. I rest my case.
HON. MAMOMBE: Madam Speaker, I rise on a point of order. I think it is alarming and it is a problem when the Hon. Minister has to rise and ask which clause is it because as parliamentarians what we expect from the Hon. Minister of Justice is that, he is supposed to be the brain child of laws that come to Parliament. So, it is surprising that he does not know the Bill. He is not even aware of the clauses that are in the Bill. Does it mean that the Bill is a copy and paste or it was crafted from somewhere because there is a record in this Parliament that we end up debating wrong documents? We want the Hon. Minister to clarify if this is a correct document. Just today, we were debating on a wrong document Madam Speaker. So, is it the correct document that we are debating on because he is not aware of some of the clauses that are in the Bill? I thank you.
THE TEMPORARY SPEAKER: Point of order overruled.
HON. TSUURE: Thank you Madam Speaker for affording me this opportunity to aire my opinion on this Bill that is before us. I would like to first give reference to the Constitution which among many other things that it gives right to, it also gives rights to citizens the right to demonstrate. It clearly does so but one thing that we must also be aware of on the right of a citizen to demonstrate is the fact that whilst a citizen constitutionally has the right to demonstrate, the same citizen must also be aware that whilst in the process of exercising their right to demonstrate, he must not infringe on the other person’s right to freedom.
It is no secret that in the recent past, we have witnessed people exercising their right to demonstrate having infringed in a very big way the people that were around them. We have witnessed in the recent past in this country that whilst some citizens were exercising their right to demonstrate, in a way they also affected people that were around them. We should not pretend to be blind to this fact, that in this nation people have gone to demonstrate rightly exercising their duties but we have seen destruction of property in that prophesy. So, when we craft our laws we must take cognisance of that fact. We must protect people. When citizens exercise their right to demonstrate, they must take cognisance of the safety of the people and property around them.
I also want to move to the security of property. Madam Speaker, the Bill would not address safety to property in a way better than what this Bill seeks to do. When people exercise their rights, we must be cognisant of the private property of people. We have seen in this nation when people are exercising their right to demonstrate destroying people’s property. Which nation would watch aloof when houses and private properties are burnt to ashes. So, this Bill seeks to address that. The excesses of exercising our rights, we should not take it to excess and be cognisant of the protection of private property rights. This Bill seeks to address that and it does that in a good way.
I speak on the temporary prohibition of certain weapons. I think this is clear. Not all weapons have been prohibited here. Weapons have been prohibited within certain times when there are incidents of certain situation call for the prohibition of those weapons. I think the Bill is clear on this one.
I also want to touch on Clause 7 which is on the notice processions, public demonstrations and public meetings. I think this clause is so clear. It is paramount that when public gatherings are held a notice be given. I think this clause was highly supported that when there is an intention to hold public gathering, a notice be given and a notice is nothing more than what it says. It is just a notice. It needs to be known what the purpose of that gathering is going to be like so that the security agency prepares for that gathering in time. We have noticed that when people purport to gather for otherwise good intentions, the gatherings have turned out to be violent. So, our security agents need to be made aware of such gatherings. This is rightly so because our security forces, police in this particular case, need ample time. Notices are not only given for the sake of the people holding the public gatherings. I think seven days notice is a reasonable time because the forces also need time to prepare for the safety of not only people conducting the gathering but the surrounding people who may have nothing to do with that gathering. We need to have certainty that they are secured.
I would also want to comment on Clause 10 on the gathering in vicinity of Parliament, courts and protected places. I think we need to acknowledge that the world over, there are always places which are of high security; this is not only phenomenal to Zimbabwe. It includes Parliament except only may be when you come to present a petition. However, why should you, of all the places in the country choose to demonstrate at Parliament? – [HON. MEMBERS: Hear, hear.] – I do not see a reason why a person should choose to come and demonstrate at Parliament, why not elsewhere? I think this is a reasonable expectation; that people should not demonstrate around Parliament or such places as Parliament.
Madam Speaker Ma’am, let me go to Clause 13, the clause that deals with the carrying of identity documents. I think this one does not warrant more explanation than it does. There is need to carry identity documents. Yes, I agree with the fact that if a person does not have an identity document at that particular time, he/she can provide it in seven days, I think it is reasonable. If, as you walk out of this Parliament Building you are hit by a car and you do not have an identity document, how will your relatives know that you have been hit? I think it is only reasonable that you carry an identity document. Where we cannot provide them, we provide them in seven days. I fully concur with this clause.
Clause 17 talks about when the defence forces may assist the police. I want to make reference to our own local situation. I will not make reference to other countries. We have situations where we had instances of violence and our police would not contain it because of the magnitude of the so called demonstration. We witnessed demonstrations that went so violent to the extent that some police officers were killed in full view of the public. Which nation in the world would watch and pray as people including police are being stoned to death? There is no such nation in the world, I have not heard of or seen any.
So, there are circumstances where police require assistance from the military. I think we all know, it is provided for in our Constitution that in such instances, the President can warrant such intervention. There is nothing amiss with this clause in my view. On the same issue as I conclude, the ideal thing would be that the police handle violent protests. However, you would notice that our modern world has means and ways of containing such violent circumstances without the intervention of the military. You would notice that in our situation, as a country, we are not able. I think my fellow Hon. Member of Parliament said that we are not able to acquire the equipment that we would expect our police to use because of the reason that we all know. It is not a secret that we are under sanctions, we are not able to do the things that we desire to do and we are not able to purchase the things that we want to purchase. Our capacity is infringed on because of the sanctions that we are going through. Because of the environment that our police find themselves in, there is need for the intervention of the military. Thank you Madam Speaker.
*HON. P. ZHOU: Thank you Madam Speaker Ma’am. I am grateful for the debate before this august House. I would like to thank mostly this Bill. I am grateful that our Constitution of Zimbabwe 2013 which gives us our rights that we all enjoy. However, in an effort to exercise these rights, sometimes we forget to maintain peace and order which results in acts of violence.
This Bill tries as much as possible to talk about our rights as provided in the preamble. Rights are limited – [HON. MEMBERS: Inaudible interjections.] – I would like to examine Clause 10 which talks about gatherings of people who want to demonstrate and want to gather in the vicinity of Parliament, airport and courts. They want to go to places that are highly visible so that their grievances are heard. We are happy and would like to suggest that the distance should be increased and they should keep away from such places like the Parliament. They will infringe our people’s rights as well we should not be happy that people come close to Parliament. They will disturb proceedings and attract unnecessary attention. Whoever has grievances should hold their business elsewhere and allow the business of Parliament to proceed. I strongly support that clause.
The clause on the identity documents or any other form of identification, everyone should carry their own form of identification on them because you may collapse because of illness.
You may be walking in town where there is not even a demonstration and you can fall down. If I fall down, well I am known as Gonyeti. At least they will know that it is Gonyeti that has gone down. We urge that the clause remains in place. One should be able to be identifiable. The convening of a meeting and the need for a notice when one wants to conduct a demonstration or a meeting. I fully support that, the reason being that for purposes of planning by the police.
If you want to have a demonstration, the police should know how many of you are going to be involved and what route you are going to be taking because for example there will be a thousand people who may want to walk along a sanitary lane. They should be known so that the police can adequately prepare.
I would want an addition to the Bill, that of convening or making an invitation. Social media or the media should not be used in calling for these gatherings. There should be a law where such people who make these invitations should be arrested – [HON. MEMBERS: Inaudible interjections.]- I have left out something on identity cards. We observed that when demonstrations were conducted, others were wearing masks and they were torching tollgates or Choppies stores with the masks on. You should not have a mask. You should be identified with an identification document. The law is inot selective. It does not discriminate between myself, Gonyeti or anyone else. You will be arrested – [HON. MEMBERS: Inaudible interjections.]-
*HON. CHIHURURU: Madam Speaker, what is a Gonyeti in Parliament? – [HON. MEMBERS: Inaudible interjections.]- Behave yourself. You threaten your wife at your home not me. Behave yourself, do not threaten me. What is a Gonyeti, Madam Speaker? – [HON. MEMBERS: Inaudible interjections.]-
THE TEMPORARY SPEAKER: Order Hon. Members!
*HON. CHIHURURU: Madam Speaker she is continuously saying Gonyeti. What is a Gonyeti?
THE TEMPORARY SPEAKER: Order! Hon. Zhou who are you addressing as Gonyeti – [HON. MEMBERS: Inaudible interjections.]-
*HON. P. ZHOU: Madam Speaker, I beg your pardon. I did not hear you. Please, be silent so that I can hear – [HON. MEMBERS: Inaudible interjections.]-
THE TEMPORARY SPEAKER: Hon. Zhou may you please inform the House, who you are addressing as Gonyeti? Please, be silent so that I can hear – [HON. MEMBERS: Inaudible interjections.]-
* HON. CHIKWAMA: On a point of order. The previous speaker raised clenched fists. The raising of clenched fists is not allowed in Parliament – [HON. MEMBERS: Inaudible interjections.]-
*HON. P. ZHOU: Thank you Madam Speaker. If I heard you correctly Madam Speaker, you asked what a Gonyeti is. I was giving an example. Gonyeti is my nickname. You were also calling me a Gonyeti and I do not have a problem with that. I was giving that as an example.
*HON. HAMAUSWA: Madam Speaker, does Hon. Paradza have immunity in this House that he can stand up and point at people and you do not chase him out?
*THE TEMPORARY SPEAKER: Which Hon. Member?
HON. HAMAUSWA: Hon. John Paradza?
*THE TEMPORARY SPEAKER: I did not see that. I cannot comment on what I would not have seen. I would like to talk to Hon. Chihururu. I am pleading with you. We do not talk about we want to assault people or any other signs.
*HON. CHIHURURU: I was following what they do when doing their slogans raising their fists.
*THE TEMPORARY SPEAKER: We are not allowed to make party slogans.
*HON. CHIHURURU: I apologise Madam Speaker, but when we go outside we will get to each other, we are going to hit each other, but sorry – [HON. MEMBERS: Inaudible interjections.]-
THE TEMPORARY SPEAKER: Hon. Raidza, may we have progress. May you proceed Hon. Zhou – [HON. MEMBERS: Inaudible interjections.]-
HON. J. PARADZA: Vane ngozi ava, honai zvirikuitika – [HON. MEMBERS: Inaudible interjections.]-
*THE TEMPORARY SPEAKER: Hon. Paradza may you withdraw your statement.
*HON. J. PARADZA: I withdraw Madam Speaker.
*THE TEMPORARY SPEAKER: Thank you. Hon. Zhou please proceed.
*HON. P. ZHOU: Thank you Madam Speaker – [HON. MEMBERS: Inaudible interjections.]- Yes, I have been given the opportunity. I have rights. I also support the issue that the President has the powers. I also support the point that in times of difficulties, you should be given the power to quickly mobilise the army to intervene. I also support that once the army intervenes in the disruptions or the violence, it should go there fully armed and assess the situation.
A police officer should not be struck by a stone or killed. Anyone who assaults or kills a police officer should be given a mandatory sentence or a maximum sentence. The police should be protected by the soldiers. The good thing about the law is that it is non-selectivve. That law should not discriminate. Anyone who would have offended should be tried. I support that those that are violent should be dealt with properly so that they are deterred from causing violence. In conclusion, let me say that I am happy about the change of the name from LOMA to Maintenance of Peace and Order Bill and not POSA. You have come with a good name. I thank you very much.
*HON. SEWERA: Thank you Madam Speaker for affording me opportunity to debate on the peace and order on a country that was fought for and people lost their lives for. I will deal with the issue of public meetings. I heard others saying 15, some were saying 50 and others were saying 100 as the number of the people that should attend a public meeting. When the liberation movement started which I give as an example, when people wanted to start liberation struggle, the number was only three. So the number 15 should be maintained. Three people can come up with a very difficult struggle. The number should be maintained at 15, it could even be reduced to 10. On the issue of the appointment of the regulatory authority, the world over, all countries have their laws. We should have laws that are in conformity with the Zimbabwean country. If someone does not like the regulatory authority in the form of the police, it is because they are guilty of something. Since the guilty are always afraid. The police should allow you to hold the meeting within seven days or not and whether that meeting can be held or not…
HON. BITI: On a point of order Madam Speaker. It is not allowed or permitted to debate in this august House when you have imbibed and you are not in your sober senses. This Hon. Member – [HON. MEMBERS: Inaudible interjections.] – He was in the bar.
HON. BITI: Madam Speaker, the bar is not yet open. Thank you.
THE TEMPORARY SPEAKER: May you please withdraw.
HON. BITI: I withdraw.
*HON. SEWERA: Thank you Madam Speaker. The requirement of seven days being required to give notice to the police enables the police to protect the demonstrators. Madam Speaker, we differ. Some are criminals, some have ideologies and others do not have. On the issue of people that come and demonstrate either at the courthouse or at Parliament, I say no. Petitions can be handed over at the door where people are not gathered. Petitions can be brought to Parliament without any problems. Those that come to handover their petition should be a 100m away from the precincts of Parliament – [HON. MEMBERS: Calm down.] – I am speaking as a comrade. On the issue of cordon and search – areas can be cordoned and can be searched without a warranty so that a criminal can be apprehended. On the issue of stop and search, it is a security issue. With reference to how this country attained its independence, when the police want to search you, why should you be apprehensive? What are you afraid of?
HON. MUSHORIWA: On a point of order Madam Speaker.
THE TEMPORARY SPEAKER: What is your point of order?
HON. MUSHORIWA: Madam Speaker, the idea of debate is to contribute to the issue on the table. I think it is wrong to cause any Member to probably die of heart attack. I want the Chair, Madam Speaker, to guide and help the Hon. Member who is supposed to be contributing and debating to advise him that the dictates of debating is not shouting. He can die of heart attack and we still want him. I thank you.
THE TEMPORARY SPEAKER: Hon. Member, there is no point of order there.
*HON. SEWERA: Madam Speaker, there is what is called terrain and terrain features. Zimbabwe does its things in its own way. There is the issue that at what stage can the President deploy security, the question is – what should trigger the President to call in the army. That is a good cause and when police cannot handle matters on their own, the President will not leave the country to burn but will deploy the army to quell the situation.
*HON. J. PARADZA: On a point of order Madam Speaker. Hon Karenyi is taking videos in this House and it is not permissible.
*THE TEMPORARY SPEAKER: Hon. Karenyi, if you are doing that may you please stop it.
*HON. SIWELA: Madam Speaker, we are in agreement with the idea that whoever wants to organise a meeting should go and register all his/her details with the authorities. Those who are scared to register their names have issues. We did not start doing demonstrations today. I will give you an example of the one million march which was led by Jabulani Sibanda. There was no property that was destroyed because these people were orderly and were just pursuing their own agenda. So people should be known and held liable for any damages if they call for demonstrations.
HON. MATEWU: On a point of order Madam Speaker. The dressing of the Hon. Member is not parliamentary decorum. Hon. Siwela of Murehwa West, his dressing has nothing to do with parliamentary decorum. He is wearing a jumper Madam Speaker Maam.
HON B DUBE: Thank you Madam Speaker, I will take you through my submission on Clause 8, which makes it a criminal offence to go against a prohibition order. Suffice to say this is unconstitutional as it criminalises the exercise of a constitutional right, the difficult part of this clause is actually on the fact that what is referred to as a prohibition order is an order that is given by a regulatory authority. The problem that we have with that is that as a matter of fact, it must never be any one of the two contending parties to then make their side of the story an order to stop or bar citizens from exercising their rights. It must be made by a court of law. So, if there is disagreement between the convener and the regulatory authority, the regulatory authority must approach the court and have a prohibition order from a court of law if ever there is justification for that prohibition order.
I will quickly go to Clause 10 which prohibits gathering near Parliament, courts and other protected areas such as ZBC or Heroes Acre. This distance in this proposed law does not take into account the size of our cities where 100m from this Parliament is prohibiting anyone even from gathering just by the garden which is adjacent to this place because that is more than 100m. Also, you cannot gather anywhere near because on the other side there is the High Court and the Constitutional Court, which means nobody can ever gather or march in the CBD of Harare because with the size of our cities, 100m from here and the number of protected areas means you will never have any demonstration in the CBD of Harare by and large. So, my position is that this is utterly wrong, unacceptable and not reasonably justifiable in a democratic society. To make this more clearer, the aspect relating to this prohibition from gathering is again as alluded to by Hon. Mavhunga relating to where this is being borrowed from. This is being borrowed from the laws of a regime that this republic assisted the revolutionaries in South Africa to fight against. This is a clause that is coming from the demonstration in or near Court buildings Prohibition Act No 71 of 1982 in South Africa by the apartheid regime. I am shocked and devastated to find out that a new dispensation is actually doing something which we once assisted to fight against for decades.
So, it is actually shocking how we come up in 2019 with a copy and paste of things of 1982, Not only 1982 but from a regime that we fought and a regime that we had to host many of the people who were running away from this very clause in South Africa. What is more surprising is that it is worse than the South African one because the regulation in South Africa actually had some exceptions to this very law which was draconian. We are however shocked that here in Zimbabwe we are coming up with Clause 10, taking this country to South Africa in 1982 . It is critical to note that even in the regulations of 1993 in South Africa which were subsequently following on to the 1982 that I was referring to, they actually repealed this law in the apartheid by 1993 because they realised it was unacceptable. But a Zimbabwean government in this millennium is actually not only going to apartheid but beyond apartheid of 1993. There is no justification whatsoever of this country going that far. There are a number of logistical challenges to these aspects.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARYAFFAIRS (HON. ZIYAMBI): On a point of order. In terms of Order No. 78, with all due respect to the Hon. Dube, he is raising points that have been raised by others. Our Standing Rules are stated in Order No. 78. If you say things that have not been said by others, surely it is okay.
HON. B. DUBE: Madam Speaker Ma’am, as a matter of fact, Hon. Mavhunga who I referred to never discussed the clauses that I am discussing now. He ended on Clause No. 7 and I am relating to Clause No. 10. This has never been discussed by any one and the Hansard is very clear. If people may just appreciate and realise that it does not matter whether you copied and pasted for Clause No. 7 and if you again copied and pasted on Clause No. 10, we are allowed to take you back to that very evidence that you copied in Clauses 7 and 10 from the same law. So, I do not find how I am barred from discussing Clause No. 10 in terms of regulations. Clause No. 10 was never discussed by anyone.
Actually for purposes of record, the clause that has been referred to is talking about sitting arrangements in the House. So, the aspect relating to the clause that I am talking about, Clause No. 10 is just to say the Executive must take into account the size of our cities and the nature of our city plans where the 100 metres being referred to can never be possibly applied early without actually completely taking away this right.
On Clause 11 – it empowers the convener who is aggrieved by a prohibition notice to appeal to the magistrate. It is my contention that the convener is not the one who is ever aggrieved because they are only supposed to be giving a notice to the regulatory authority. The person who is aggrieved is the regulatory authority who may be having reasons to limit that right and it is that regulating authority that must actually approach the court in terms of the application of Clause No. 11 and not vice-versa. Any regulatory authority that is aggrieved is the one who must approach the court and say, this right under the circumstances cannot be exercised for one, two, three and four limitations.
On Clause No. 12 – it imposes strict civil liability on any loss suffered after a convener has failed to give notice. There is a legal issue that must be addressed in this regard. As a matter of fact, a civil proceeding and a criminal proceeding are different and it is wrong and unacceptable to actually want to have a court dealing with a criminal trial to make a remedy to which it has not made a proper enquiry as required by the law because a criminal trial is different in terms of how it is conducted and at times, there is no basis when a witness is coming to give testimony in a criminal matter. There is no concept which relates to the qualification of damages in a criminal trial.
So, how does that court get empowered to make a decision on damages on the issue that it is not enquiring on? It is simply enquiring on whether there was destruction of any property or there was any injury and whether it was intentional or negligent and it ends there. If it finds that it was intentional, it convicts you and that is the end of a criminal trial. Under what circumstances will it then say, pay $100 000 because that is not subject to the enquiry in terms of the Criminal Procedure and Evidence Act on what that court is supposed to be doing.
As if this is not enough, this particular law is shocking in that it is making a strict liability which is actually not consistent with the current trend in terms of the laws in this era. There is no justification or basis why a person will be strictly liable and is not even allowed to give defence. I will give you a shocking example. From the regulations that were copied and pasted, shockingly they gave a defence. Actually, Botha and all the other people that we were taught in history as the most cruel people against blacks actually gave blacks a defence relating to conveners by saying, that convener is allowed to say, I did not permit, I did not connive and I did not make any omission. I did my best and that is Botha for you.
As the new dispensation is saying, it is actually giving an impression that it is worse than Botha because Botha was giving a black person a chance to say I did not know what this person was doing and I did not agree with them. So, my suggestion is simply that, the Executive must simply give the contemporary defences that are available under such circumstances to say, they did not willfully permit or were not negligent under the circumstances. That act or omission will then be the subject of an enquiry because a court is already trained to then check the genuineness, the validity of that defence. So, why are you denying us a defence; why are you denying Zimbabweans a defence which Botha himself was giving to Mandela?
On Clause 12, it talks about the aspect of compensation. Let the aggrieved person just follow the due process – a person who has suffered loss knows where to go and enquiries will be duly done. I will quickly go to Clause No. 13.
*HON. MAKONYA: On a point of order Madam Speaker. That murungu said some vulgar words.
THE TEMPORARY SPEAKER: Hon. Makonya, in this House, we do not address each other that way, may you kindly address the Hon. Member accordingly if we need to reply to your point of privilege.
HON. MAKONYA: I withdraw Madam Speaker.
HON. B. DUBE: Madam Speaker, I will quickly go to Clause 13 which relates to the use of firearms as an option in terms of enforcement of this law. As a matter of fact, I am sure the requirement of the law in terms of when and how deadly murderous weapons can be used is only in self – defence and that must remain. I will end by saying I am actually indebted a bit to the concession made by the Executive relating to Clause 14 by completely abiding by the suggestions that were made and actually relating to the requirements of identity documents although some people were continuously debating on it. I am indebted to the Executive in terms of how they made a concession and with new part of the law. So, it is shocking how other people will see that. By and large, my position is that this law cannot pass under the context that it is.
*HON. CHINOTIMBA: Thank you Madam Speaker. I want to add my voice to this important debate – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order Hon. Members.
*HON. CHINOTIMBA: Some of us go to church, if the preacher is preaching about thieves and if one knows that he/she is a thief that person will never say amen because they know that they are thieves. Even if the accused is being tried, he will never confess that he is a thief, he will say they are saying that I am a thief. I want to speak on the MOPA Bill, the Minister left something in drafting this Bill. As Member of Parliament, when we take oath of office, we say that I will serve my country and the people of Zimbabwe lawfully with honesty. It is surprising that a Member of Parliament will leave his country and go and ask for sanctions outside – [HON. MEMBERS: Hear, hear.] – Now, where is the maintenance of peace when the people of Zimbabwe are suffering because of sanctions?
HON. CHINYANGANYA: On a point of order Madam Speaker.
THE TEMPORARY SPEAKER: What is your point of order?
HON.CHINYANGANYA: The Hon. Member needs to debate in an honourable manner, not to debate like he is shouting.
*HON. CHINOTIMBA: Thank you Madam Speaker. I am appealing that as I am being disturbed by interjections, you will add those minutes so that I contribute all what I want to say. I support this Bill but I am appealing that this country be a peaceful country. If there are people who did something wrong, then this Bill will deal with it. On gatherings Madam Speaker, people love America as a powerful nation but black people are being killed daily in America. If they gather in numbers of three people upwards, they are killed. You can see that Zimbabwe is a peaceful country because it is allowing the meeting of 15 or more people but what I am appealing is that if more than 15 people gather, then they must be registered with the police.
HON HAMAUSWA: On a point of order Madam Speaker.
THE TEMPORARY SPEAKER: What is your point of order?
*HON. HAMAUSWA: The people on the opposite side are not dressed property today. Hon. Nyathi is not putting on a jacket. I want to tell him to go and put on a jacket – [HON. MEMBERS: Inaudible interjections.] –
*THE TEMPORARY SPEAKER: Thank you, Hon. Nyathi is well dressed.
*HON. CHINOTIMBA: I thank you Madam Speaker. As regards the laws of some other country which some Members in this House like or frequently visit, if three of us would dress in African attire or Moslem dressing they would simply shoot without any questions being asked. They do not like three people to be gathered, this country is very peaceful, we only require a gathering of a minimum of 15 people to report to the police. In terms of demonstrations, Madam Speaker, our Constitution allows people to demonstrate. It allows them freedom of expression; hence they are free to express themselves. But it is unheard of for one who is demonstrating to go and destroy his or her young brother’s property or his or her mother’s property.
So, on the issue of demonstration which the opposition is against, they should be allowed without destroying people’s property. Once they destroy people’s property, they should follow Mrs. Mupfumira. The same fate should befall all those that are corrupt and all those who vandalise people’s property, should be incarcerated.
HON. ZIYAMBI: Hon. Speaker, Order 106 says irrelevance or repetitions, it says the Chair may direct a Member to discontinue his or her speech and resume his or her seat after having called to order such member for persisting in irrelevant or tedious repetition of his or her arguments or those used by other members in a debate or for disregarding any ruling or observation made by the Chair which defines or restricts the scope of any debate or which relates to the enforcement of provisions of Standing Order Number 93. I respectfully submit that we stick to this rule. If somebody has said something already, let us not repeat it for the sake of progress and let us not say something that is not relevant to the Bill.
THE TEMPORARY SPEAKER: Hon. Members, just like what the Hon. Leader of the House has said, let us all observe Order Number 106 and 93 so that, at least we can have progress.
HON. SIKHALA: Madam Speaker, the expectation of the House is that when the Chair is arbitrating over the debate in this House, the Chair must act impartially. The Hon. Minister quoted a wrong provision of the Standing Order, so when Members tried to refer to it, they found that the Hon. Minister was misleading the House. So, for him to go and dig deep and try to insult the Hon. Member by describing that he is cramming, I do not think it is honourable on behalf of the Minister. It is absolutely distrustful; it is not the mistake of the Hon. Member to correct the Minister that he has checked that Standing Order and that Order does not have that provision. So, Hon. Minister, when you do a mistake, accept that you were wrong and correct yourself and we move as a House.
THE TEMPORARY SPEAKER: Hon. Leader of the House, I think it has been noted. It is good that he has corrected himself because of the mis-quote of the relevant Standing Rules and Orders. I think that is noted. So, it is Section 93 and 106.
*HON. CHINOTIMBA: Thank you Madam Speaker, this will enable us to quickly go home because there will be no repetition. Madam Speaker, the gathering by the people, the Government, once there is a Government, it should enact laws that give guidelines on how people are supposed to congregate and what should happen when there is violence. I have reiterated by saying of all the laws that the Minister has brought before Parliament, we should come up with stringent laws against those who invite sanctions against their own country. He should come up with punitive laws against individuals who cause sanctions to be imposed on our country.
Whenever an individual leaves this country, they should be good ambassadors of this country and not act in bad faith. Once they offend against this country whilst outside the country, they should stay there. The same fate should befall those who commit crimes whilst outside this country. They should not be illegal immigrants (boarder jumpers), we do not want to see them. Thank you.
HON. SIKHALA: Thank you very much Madam Speaker for giving me an opportunity to contribute to this very important debate. This Bill is a subject of a call both locally and internationally to reformation in terms of our laws in this country. At different forums and at different platforms, Government officials, including the Minister of Foreign Affairs, has been pronouncing to the world that Zimbabwe currently is in the trajectory of reformation so that it will come to be part and parcel of the global international community. One being that Zimbabwe is currently lobbying to be readmitted to be a member of the Commonwealth. Several trips have been held by the Minister to go and lobby those communities so that Zimbabwe would be accepted in the international community. It is a sad note that today as we are seated in this Hon. House at exactly twenty five minutes to 11 o’clock midnight, we are debating what is called self imposition…
THE TEMPORARY SPEAKER: Twenty five minutes to 11 o’clock midnight?
HON. SIKHALA: Twenty five minutes to 11 o’clock towards midnight.
Madam Speaker, today we are debating what we call self imposition sanctions Bill. The international community looks at the democratic space and the nation is opening for it to be part and parcel of the international man. The Bill before this House today is talking about political and civil rights. Political and civil rights are called at law ‘first generation rights’. First generation rights are not rights where modern space can be allowed to stampede upon. Zimbabwe is part and parcel of the international community. With its confines, it must be able to pass laws that are in sync with modern constitutionalism.
I want to help the Minister of Justice today so that he puts his mind very carefully to this Bill. The United Nations (UN) Charter which Zimbabwe is part to – Article 21 of the United Nations Charter puts at the core issues of civil and political rights as one of the heart beats of the existence of the United Nations. This has been borne out of the universal declaration of human rights which was adopted on the 10thDecember 1948 by the UN and specifically at the core are civil and political rights. We have had several contributions here but the Minister must know that when he goes to international platforms because I know that annually he goes to Geneva to a conference for the international convention on civil and political rights for a month – which is one of the wings of the united nations where issues of human rights, political space, civil and political rights are debated intensively.
He also goes on an annual meeting of Ministers of Justice throughout the world in Geneva. Each and every step will be accessed on the barometers of its human rights.
Articles 19-21 of the International Convention on Civil and Political Rights protects civil liberty from the freedom of association to that also, freedom of political rights. This Bill that we are debating today is stampeding and throttling democratic space in our country. When other countries look at Zimbabwe, they will look it at the mercy of asking whether there is democratic space in our country. Why do we want to throttle democratic space?
If you would have carefully listened to the submissions by the Parliamentary Portfolio Committee on Defence, Home Affairs and Security Services and the recommendations that they have given to this House, the Minister should have put his mind in considering the recommendations of the Committee. The Committee is the one that went outside to canvas the views of the people of Zimbabwe in terms of the provisions of the Constitution that any Bill that is passed in Parliament must be consulted from the public first and the public’s views have been brought here. I think at one material time, as a Committee, we went outside and people told us that, ‘you are coming here to consult us but we realise that our views are not considered in Parliament. Why are you wasting our money, why are you here and why do you waste national resources by simply coming to canvas our ideas that you are not going to put into consideration in Parliament’.
The views of the public of Zimbabwe – Hon. Rt. Gen. Mayihlome went to consult the Zimbabwean public on what they thought about the Bill that we are discussing today. Zimbabweans spoke openly that there must not be use of military in dispersing demonstrations.
Demonstration is part and parcel of the constitutional rights that are provided for in terms of Chapter 4 of our Constitution. Zimbabweans said that though the right might be limited, it must be in a sense inconsideration of a democratic society.
Recently in South Africa, talking about the provision where there is criminal and civil liability over the convener of the meeting, if there has been an outbreak of violence by the perpetrator. What this Bill does is that if myself and Hon. Chibaya organises a peaceful demonstration in Harare in terms of Section 59 of the Constitution, then the military comes and shoot and kill people like what happened on the 1st of August, it draws the obligation for civil liability from the perpetrator to the victim.
They say you Sikhala and Chibaya, you are the ones who organised the demonstrations in the street, so you are responsible for these dates and you must be sued not the perpetrator but the victim – [HON. CHINOTIMBA: Zvataurwa kudhara izvo.] – [AN HON. MEMBER: Nani?] – Madam Speaker, last year in South Africa, because in South Africa they do not have a codified criminal system like ours where we have the Criminal Codification and Reform Act, they are still using the common law. In the common law, you can claim liabilities against somebody who would have committed a civil wrong against you. So they took for constitutional consideration whether it is prudent in terms of the Constitution of South, for people who have organised a demonstration to be given punitive civil damages against them. It was considered in the case of Mlungwana and Others versus the State and a South African Constitutional Court decision 45 of 2018. Last year, a fundamental and important ruling was made and for the sake of avoidance of doubt, the South African Constitutional Court slashed down the offence of failure to give notice fighting that the right of assembly is too important to be restricted by a law which even criminalises peaceful and an unarmed assembly. This is a decision by our own sister South African court.
The following countries which Zimbabwe is currently struggling to establish relations with have struck out offending provisions like the one criminalising people who intend to demonstrate. South Africa, as I have read this case law which was decided last year, Australia did the same; the United Kingdom, a country which is currently playing a public relations role on behalf of our Government has struck out these offending provisions. Today, our Minister is busy pushing the offending provisions which he knows when he goes and tables into the international community, they will say Zimbabwe is still a tyrannical, unconstitutional and a fascist Government.
Authoritarian provisions that are being provided in this Bill Madam Speaker, will make sure that sanctions in Zimbabwe will not be removed. This is not …
*HON. CHINOTIMBA: Madam Speaker, my friend Hon. Sikhala should respect us when he says we do not want sanctions to be uplifted on this country –[HON. MEMBERS: Inaudible interjections] –
HON. SIKHALA: Madam Speaker, we pass self imposing laws in this Parliament and then tomorrow we turn around like what Hon. Chinotimba was saying here accusing members from this side of instigating the imposition of sanctions in our country whilst we are the only authors of the Zimbabwean sanctions because of our own behaviour in this House.
Madam Speaker, let me also enlighten the Minister that the European Union …
HON. T. MOYO: Madam Speaker, there is nothing like self-imposing sanctions. I think the Hon. Member should concentrate on his debate and not on things that are not in line with what we are discussing here.
THE TEMPORARY SPEAKER: Hon. Sikhala, according to Standing Order Number 93 which you once referred to previously, there is need for us not to impose certain things on Hon. Members or certain people in this House. It is better that you just address yourself and not relate to other people when you have no evidence to it. You can continue but let us refrain from that.
HON. SIKHALA: The European Union Court on Human Rights and also the United Nations Committee on Human Rights recently passed a ruling that there must be no civil liabilities on citizens who are exercising their civil and political rights. This is an international court. The European Union Court on Human Rights is a court for the entire European Union block, countries which Zimbabwe today is trying to engage to have good relations with. When you pass laws contrary to their ethics and conduct, how will Zimbabwe and the new dispensation – [HON. MEMBERS: Inaudible interjections.] – …
THE TEMPORARY SPEAKER: Hon. Members on my left, I have always engaged and indulged with you every time you have raised a point of order. So, let us also do the same to the right side of the House.
HON. O. SIBANDA: On a point of order. The Hon. Member was referring to the United Nations. He never referred to any article of the United Nations. We want to confer to that. He was just speaking here – [HON. MEMBERS: Inaudible interjections.] – He must be specific. We do not want things from his head. Thank you.
THE TEMPORARY SPEAKER: Hon. Sikhala, this is …
HON. SIKHALA: I said in terms of Articles 19 – 21. I am not here to open people’s ears. I said in terms of Article 21of the United Nations which protects Civil and Political Rights. Madam Speaker, Zimbabwe is part of the African Charter on Human and People’s Rights. Reference is given to Articles 12 and 19 which fundamentally protects Civil and Political Rights. When will our nation be part and parcel of the international community without shooting itself in the foot?
The Bill before this House is also against Customary international law. Madam, civil and political rights over a long period of time have been mutated to customary and international law. When a human right mutates to customary and international law Madam Speaker, on the basis of what is called at international law opino juris sive necessitatis which means the entire international community believes that civil rights have attained customary international law, they must be enjoyed without limitation. Today in this House, a very sad day indeed, we are tussling against each other over issues that we shall all regret tomorrow. This Bill, as earlier mentioned by speakers before me, has what is called at international law, nec nocent nec prosunt, meaning in Shona, wazvibikira wega, chidya wega – [HON. MEMBERS: Hear, hear.] – This provision Madam Speaker will never make Zimbabwe be part and parcel of the civilised international community. This Bill is here to throttle the democratic space in our country. The Bill is here to stampede on the rights as enunciated by Hon. Tendai Biti provided for in Chapter 4 of our own Constitution.
At no material time will Zimbabwe be able to mature to a full blown democracy. It is allowed Madam Speaker…
HON. PHULU: I move that the Hon. Member’s time be extended Hon. Speaker.
HON. T. KHUMALO: I second.
Motion put and agreed to.
HON. SIKHALA: Madam Speaker, this entire Bill we are debating today is against the principles of constitutionalism. There is no any other document in our country that governs and regulate on how civil and political rights must be enjoyed in our country more than our own Constitution. This Constitution Madam Speaker, in the presence of the Minister of Home Affairs and the Minister of Justice, provides checks and balances for our country to be on the terrain of constitutionalism. Where the State goes on the negative side of constitutionalism, where they want to promote tyranny and excess practice of power, that country becomes an outcast in a modern 21st Century nation.
Madam Speaker, for God’s sake, we are in the 21st century. Twenty First Century requires states to think outside their narrow political interests of the material time. This law will govern the generation of today and tomorrow. We do not want our children and grandchildren to ask tomorrow, ‘my father, you were in Parliament, were you in your proper frame of mind when you were passing such kind of a draconian law?’ Madam Speaker, today I want to take an oath and a vow that I do not want to be part and parcel of the sad history in our country, where I will leave my children and grandchildren to inherit this kind of an impugnant law. I am excused from this law. I thank you Madam Speaker.
HON. PHULU: Thank you Madam Speaker. I will be very brief because we have had a lot of debate at this point. I want to take from the theme that this indeed is going to be a very sad day and I would like to demonstrate why; this is the watershed moment for our very dark and bleak future if we take this Bill on board. Everybody is watching and our people are watching back home.
I can even state why this law is not about peace If I am a convener and I convene a meeting which takes place peacefully and I fail to notify or my notice is flawed, the demonstration ends peacefully and everybody goes home peacefully, I will still be charged because the offence remains. The sentence is just harsh. If this law was about peace, we would mitigate those kinds of circumstances and focus on ensuring that people do demonstrate peacefully and we would be clear and encourage our citizens to take part in peaceful demonstrations.
I wanted to go to the issue that relates to the powers of the police to stop and search. We note that that is a strict liability case. If one fails or refuses to stop at a road block, that has become strict so that even if you stop 10 metres or 100 metres or you do not know that you have not stopped, the offence will remain. We think, it you should have opened that a little bit so that a proper inquiry can take place whether there was a deliberate disregard for the instructions of a police officer. As it is, it does not show and it is framed as a strict liability and I encourage the Minister to examine this clause carefully.
Clause No. 22 is also quite unlawful, it is unconstitutional. The schedules which allow people to go to Church, professionals to go to work, allows people to have parties and so on and have genuine occupational vocations. Section 22 provides that the Minister can sit in his office and fiddle with those issues and say today, I am going to remove weddings and tomorrow I am going to remove. In fact, it may even now decide to remove the Seventh Day Adventist Church and leave the Catholic Church. That is dangerous and it violates Section 134 (a). There are some things which as Parliament, we simply cannot delegate – [HON. MEMBERS: Hear, hear.] – These kinds of clauses are dangerous and show that there is a leaning towards repression rather than a leaning towards recognising people’s freedoms. It is ironic that this Act has been coupled with Finance Act, with the Budget. In a way, it has been linked to development.
There is a nobel prize winner who stated that development and freedom cannot be uncoupled. You cannot have development without freedom. It has been seen that the countries where people starved and die of famine, has nothing to do with whether or not there is food at GMB. It has everything to do with the fact that you do not know that some people in a corner of your country are starving simply because they are not allowed to come together to demonstrate and get your attention – [HON. MEMBERS: Hear, hear.] – demonstrating is a way of trying to get the attention of your Government and if today the Government is going to say that they do not want us to raise our hands or to stand up and grab their attention whenever we are dying, sick and starving, this is going to be a sad day indeed. Everybody who is watching is going to link this particular Bill with development. We will not be able to develop as long as we repress people. Granted, we do not want massacres, we are not advocating for mayhem, anarchy or anything unlawful but peaceful demonstrations, gatherings and meetings. How can we equate peaceful meetings to demonstrations which are mobile? I think that, while a lot can be done to try and put this act together, the best way forward is actually to put it on ice. Go back, reformulate it and bring it back. I mean there are other countries with this kind of legislation, but you can bring it back having formulated it in a way that it is not anti-freedom, it is not anti-demonstrations, it is not anti-freedom of expression. So, this is our submission in a nut shell.
In fact there is a reversal of onus. If you go to Section 12, it requires me to prove if I am a convener, you can come and fish me out and prove to us. If there is violence or anything, you can come and say come and prove to us that you did your job well enough so that you did not cause or how you are not a cause of this violence. It takes the principles of proving your case upside down. It also violates the principles of being innocent until proven guilty.
There are a lot of things we need to look at in this piece of legislation and I think we must not over allow this piece of legislation to over shadow the budget, to over shadow the Appropriation Bill and everything that we did today. Madam Speaker, these are my submissions in a nutshell, with particular emphasis, I hope the Hon. Minister is taking a note of this, Clause 22. There are some things that we simply should not be able to delegate. I thank you Madam Speaker.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Madam Speaker.
Hon. Chidziva having also stood up to debate.
THE TEMPORARY SPEAKER: I had already recognised the Leader of the House.
HON. ZIYAMBI: I want to thank the Hon. Members.
HON. MUTSEYAMI: On a point of order, Madam Speaker.
THE TEMPORARY SPEAKER: Yes, what is your point of order?
HON. MUSTEYAMI: We still have two more Hon. Members who need to debate this Bill – [HON. MEMBERS: Inaudible interjections.]-
THE TEMPORARY SPEAKER: Hon. Chief Whip from the Opposition, I had already recognised the Hon. Leader of the House.
HON. MUTSEYAMI: Unfortunately, you did not recognise them.
THE TEMPORARY SPEAKER: What I did, I had to ask the question, is there any debate and then the Honourable – [HON. MEMBERS: Inaudible interjections.]-
HON. MUTSEYAMI: And he was there.
THE TEMPORARY SPEAKER: I had to recognise the Hon. Leader of the House. May you kindly take your seat – [HON. MEMBERS: Inaudible interjections.]- It is unfortunate he was the one.
HON. MUTSEYAMI: Madam Speaker, it would be unfortunate if you are to run Parliament as you wish. Let us play by the rules. We have Hon. Members who need to debate.
THE TEMPORARY SPEAKER: I am sorry. Yes, they will debate at Committee Stage if we are going to proceed. Unfortunately, it has been overtaken by events – [HON. MEMBERS: Inaudible interjections.]- Order Hon. Members! Hon. Leader of the House, I give you the floor.
HON. ZIYAMBI: Thank you Hon. Chair. I want to thank the Hon. Members for the robust debate and the contributions that they made. I want in particular to quote our Constitution in Section 117 (1) (b) which says and I quote, ‘Nature and extent of legislative authority. The legislative authority of Zimbabwe is derived from the people and it is vested and exercised in accordance with this Constitution by the Legislature. (2) The Legislative authority confers on the legislature the power’ – I want to go to part (b) – ‘to make laws for the peace, order and good governance of Zimbabwe.’
Madam Speaker, we are gathered here pursuant to this clause which enjoined all of us to ensure that we pass laws for the good governance and order of our country and I am very happy with the contributions that have been given so far. The Committee did a sterling job of going out to do public hearings and the contributions that they brought, you are most welcome.
HON. C. MOYO: On a point of privilege. Madam Speaker, you asked is there any further debate and I stood up together with Hon. Chidziva. We want to debate before the Minister intervenes. Please Madam Speaker, it is procedural. I need to debate right away, right now. I represent Mpopoma-Pelandaba who voted resoundingly Madam Speaker – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: I had already recognised the Minister – [HON. MEMBERS: Inaudible interjections.] – I think it is too late for us to be chasing each other out of the House.
HON. MAMOMBE: On a point of order.
THE TEMPORARY SPEAKER: What is your point of order?
HON. MAMOMBE: Madam Speaker, I think it has to be on the record of this Parliament, it does not make sense that we are not speaking out, we represent people of Zimbabwe. We have constituencies where we need to go and give feedback. Madam Speaker, it needs to be on the record that us as the Opposition Members in Parliament, the debate has been stifled. We wanted to debate on the MOPA Bill and today, you have ruled that we cannot debate anymore. So it has to be on the record Madam Speaker. This is what I ask from you.
THE TEMPORARY SPEAKER: I did not say so. Thank you very much. I think in each and every House, there are rules that have to be adhered to. That has already been overtaken by events. That is what I said and you can also debate at Committee Stage. I thank you – [HON. MEMBERS: Inaudible interjections.] –
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you.
HON. CHIDZIVA: On a point of order.
THE TEMPORARY SPEAKER: I am not going to take any more points of order – [HON. MEMBERS: Inaudible interjections.] –
HON. CHIDZIVA: On a point of privilege.
THE TEMPORARY SPEAKER: What is your point of privilege?
*HON. CHIDZIVA: Thank you Madam Speaker. I stand here on a point of privilege. My point of privilege is on a certain section of what we are discussing today. It is on the issue of addresses and convenors.
THE TEMPORARY SPEAKER: What is your point of privilege? – [HON. MEMBERS: Inaudible interjections.] –
*HON. CHIDZIVA: My point of privilege is that in this country, there is the issue of the disappearance of Itai Dzamara. Recently, Obey Sithole disappeared but now this Parliament is sitting here saying people should provide their addresses knowing that people will be abducted from the said addresses. My point of privilege is that people from Home Affairs should look into that issue.
THE TEMPORARY SPEAKER: You are out of order Hon. Member. Can you please take your seat? – [HON. MEMBERS: Inaudible interjections.] – No more points of privilege.
HON. MUSHORIWA: On a point of privilege.
THE TEMPORARY SPEAKER: What is the problem? We are not agreeing to what you have said. I said no more points of privilege. You are not agreeing. Are we not agreeing? – [HON. MUSHORIWA: But…] – Thank you very much.
HON. MUTSEYAMI: With all due respect Madam Speaker, let give room to Hon. Members who wanted to debate.
THE TEMPORARY SPEAKER: They will debate at Committee Stage – [HON. MEMBERS: Inaudible interjections.] – You were late to respond.
HON. MUTSEYAMI: We changed the thing.
THE TEMPORARY SPEAKER: Which thing did you change?
HON. MUTSEYAMI: We had two more people who wanted to debate.
THE TEMPORARY SPEAKER: That was overtaken by events. I cannot go back Hon. Member. I had already given the Hon. Leader of the House the opportunity, so I cannot take it.
HON. MUTSEYAMI: But you cannot apply rules as you wish.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you. I would like to thank the Committee on Defence and Security for conducting the public hearings and the contributions that they have brought to the Bill and the – [HON. MEMBERS: Inaudible interjections.] – [HON. MUTSEYAMI: We had Hon. Members who wanted to debate, they have to debate. We have the right to debate. It is wrong.] –
THE TEMPORARY SPEAKER: Hon. Chief Whip, let us respect each other when we are in this House.
HON. MUTSEYAMI: I am respecting you yet you are not respecting me. Let us respect the rules. We have two people who want to debate. Those two must be given room to debate then we move on.
THE TEMPORARY SPEAKER: I said I have already responded to that. Thank you Hon. Chief Whip.
Hon. Members of the MDC-A sang intho yenzayo, niyaizonda.
THE TEMPORARY SPEAKER: You are not allowed to sing in this House – [HON. MEMBERS: Nani? Read for us.] – That is within our rules and orders. You said two Hon. Members.
HON. ZIYAMBI: Debate but we are going to invoke the rule that you will not repeat that – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY SPEAKER: Order on Members. Order Hon. Chidziva. For the record, Hon. Mutseyami, you have requested for two Hon. Members. It is on record that you said two Hon. Members.
*HON. CHIDZIVA: Thank you Madam Speaker for affording me this opportunity although I had to force my way. I am happy to be representing people of Highfield West debating the MOPO Bill. Madam Speaker, I am worried because we are debating an Act that will cause the arrest of Zimbabweans and yet we came from the liberation struggle to liberate Zimbabweans. When people went to war, they used the concept of child of the soil…
HON. ZIYAMBI: Madam Speaker, I read Order No. 106 which gives you the power to overrule irrelevant things. This is irrelevant unless you can connect specifically to what is there.
*HON. CHIDZIVA: I speak about the son of the soil concept because when the war of liberation was fought, it was so we could have our inheritance, our country Zimbabwe but now we cannot enjoy it. On the issue of preparatory meetings, what it means is that people have to go and report to the police their intention to do preparatory meetings which is not in order because our Executive Members who used to be 15 are now about 100 therefore we must extended it. The other issue is on Clause 4 and I am in agreement with Hon. Brig. Mayihlome on the issue of weapons. There is a problem of machetes which is mostly in Midlands and needs to be sorted out urgently, but the bigger issue on the same clause is that war veterans are speaking openly that they still have guns in their possession as alluded to by Hon. Matemadanda aaat an interview, which should be confiscated by Government. Then on the issue of conveners’ addresses, we know that anyone from the opposition is in danger at the moment. It is known you are convening a meeting. So, the moment it becomes law that every convener of a meeting should provide their details you will be followed at home and made to disappear like Itai Dzamara and recently an attempted on Obey Sithole. We cannot have a law that will make people disappear.
THE TEMPORARY SPEAKER: Hon. Chidziva, please stick to the debate.
*HON. CHIDZIVA: Now going to the issue of Parliament, if we want people to bring petitions we should be the people who received the people’s petitions. Therefore, we cannot make a law which makes it impossible for people not to access Parliament by observing the 100 metres set in the Bill we must allow ease access.. They should be able to come and present their petition, so we can go through it and get to understand what it is that the people want. Another issue is that of identity documents. If we make it law, it is like a Gukurahundi expansion and unfair to Cyclone Idai victims that people should move with their documents, what are we saying about those who were affected by Cyclone Idai and those of the Gukurahundi era? It means we will be doing expansion of Gukurahundi.
THE TEMPORARY SPEAKER: Hon. Chidziva, according to Section 106 (a), may you please take your seat. You are out of order.
HON. CHIDZIVA: No, I am now in order.
THE TEMPORARY SPEAKER: No, I gave you an opportunity to debate but you are not discussing what you are supposed to. So take your seat because you are out of order.
HON. CHIDZIVA: But Madam Speaker, I am debating the clauses in the Act. I was speaking about Parliament and identity documents which are in this Bill. Now, I want to end up with the issue of soldiers. I just want to say instead of using soldiers we should train the support unit . Thank you Madam Speaker.
HON. MUSHORIWA: Madam Speaker, today should never mark a day where Zimbabwe is – we want to make sure that this Bill takes Zimbabwe into consideration post today. We need to think Zimbabwe for the next five to ten years. Any law that is passed in this House should never be a law that is limited in terms of its view. Whatever we do in this House should actually outlive us. Zimbabwe at the moment is at a tipping point. Everybody in Zimbabwe is like in a furnace. It does not matter you are an employee in an organisation, it does not matter which grouping you are coming from.
THE TEMPORARY SPEAKER: Hon. Mushoriwa, please refer to the Bill.
HON. MUSHORIWA: Yes, this is the Bill because the principles of the Bill are the ones – we have not gotten to the Committee Stage. A law that puts the burden on innocent people and people that want to express their grievance is not a good law for this country. If you look at the title of this Bill, it says Maintenance of Peace and Order Bill being done in 2019 and this Bill, is meant to replace POSA but if you then look into this Bill there is no reason why we should come up with a Bill which is worse than POSA.
THE TEMPORARY SPEAKER: That is now repetition. Some Hon Member talked about that. Can you find something new.
HON. MUSHORIWA: Madam Speaker, can I get your indulgence. Is the Chair saying that a person cannot utter the word POSA because somebody said it. Is it a question …
THE TEMPORARY SPEAKER: For now Hon. Mushoriwa, this is what the Standing Rules 106 (a) says. It is quite repetitive and if you continue to repeat what someone else has said, I will ask you to sit down. So please give us new points.
HON. MUSHORIWA: I want to think that this Bill should actually be called the disturbance of peace and order bill because it is going to disturb the peace and order in this country.
HON. ZIYAMBI: Madam Speaker, I think you should stick to the rules. For somebody to allege that a Bill should be called disturbance of peace and order and you allow them to debate, I think it is not fair.
THE TEMPORARY SPEAKER: Hon. Mushoriwa, can you please withdraw that statement.
HON. MUSHORIWA: But Madam Speaker, why is it that the Leader of the House is allowed to bulldoze the Speaker. He should respect the Chair. Why does he just stand and speak without being recognised?
THE TEMPORARY SPEAKER: A point of order has already been raised and that is why I am responding to it. I said may you please withdraw that and then you continue later.
HON. MUSHORIWA: I withdraw Madam Speaker.
THE TEMPORARY SPEAKER: May you please continue.
HON. MUSHORIWA: Protect me from Hon. Raidza Madam Speaker.
*HON. CHINOTIMBA: On a point of order Madam Chair. We have several Members of Parliament from the opposition who are keeping on repeating what has been said like the Hon. Member is doing. What he wants is only to be seen that he is Mushoriwa and we do not know which faction he belongs to. They cannot even respect their President. No, Mushoriwa.
THE TEMPORARY SPEAKER: Hon. Mushoriwa, may you please say something which is new. If you are not going to, I will observe Order No. 106 (a) for you to sit down. Thank you. Hon. Raidza and Hon. Chinotimba.
HON. MUSHORIWA: But Hon. Speaker, one of the dictates in terms of this House, it is wrong to allow these Members to abuse a Member that is contributing.
THE TEMPORARY SPEAKER: That is why I named them. Thank you. May you please continue? Hon. Mushoriwa, the Hon. Minister said he is willing to hear anything new.
HON. MUSHORIWA: Hon. Speaker, we know that if this Bill goes through as it is, there is no justification and the Minister will need to explain to us the mischief that he wants to correct. There is no reason why we want this Bill to be fast tracked. There should be a reason. Why would you want to fast track a Bill which has a lot of bearing on the Zimbabweans? Madam Speaker, we need to make sure that every Member that wants to debate and look at this, should also be given the time? What is happening Madam Speaker is that we are being harassed and being denied the freedom to speak on this Bill.
THE TEMPORARY SPEAKER: Who is harassing Hon. Mushoriwa?
HON. MUSHORIWA: Hon. Raidza.
THE TEMPORARY SPEAKER: Who is denying you the opportunity to debate?
HON. MUSHORIWA: He is harassing me and I do not know for what reason. When Hon. Chinotimba was actually debating, we allowed him to debate even though he was saying nothing in the Bill.
THE TEMPORARY SPEAKER: Hon. Mushoriwa, please kindly take your seat. Thank you very much.
HON. MUSHORIWA: How do you allow Chinotimba to do that? Can you not see that he is insulting a Member of Parliament for Dzivarasekwa in the manner that he is doing. – [AN HON. MEMBER: Hon. Mushoriwa, I am doubting your professionalism, you are playful here.] –
HON. J. CHIDAKWA: Thank you Madam Speaker. I will go straight into Section 14. Madam Speaker, in the case of Elliot vs the Commissioner of Police and another of 1997, it was decided that a random stoppage, however brief it maybe and for whatever purpose, it is a detention and thus an interference with the right of freedom of movement. It was further viewed that, it was in contravention of the freedom of movement. Madam Speaker Ma’am.
THE ACTING SPEAKER: Proceed Hon. Member and do not repeat. No repetition.
HON. J. CHIDHAKWA: I am not repeating anything. Did anyone ever say this?
THE ACTING SPEAKER: You can proceed.
HON. J. CHIDAKWA: Mr. Speaker Sir, I have just quoted Elliot vs the Commissioner of Police and another in 1997. My worry comes when this ruling that we have here and we have lawyers who have come up with this Bill trying to prohibit people or to make people or to make it a failure to have an ID.
Mr. Speaker Sir, compulsory carrying of an ID is ultra vires the Constitution. On my second issue Mr. Speaker Sir, Clause 4 on temporary prohibition of possession of certain weapons within particular district, there are other issues that others have touched on, but I want to have an addition Mr. Speaker on 2 – a prohibition issued under subsection 1 shall not have effect until it is published. There are so many media that are highlighted here, including the newspaper and public buildings and the like.
I want to add Mr. Speaker to say that, there are areas which are remote and will not have access to newspapers and radio. So, it is my suggestion that we add churches, schools and village meetings so that information is circulated within that stipulated district.
Lastly Mr. Speaker Sir, my contribution is on the deployment of the army and there must be some caution. We saw the army killing people on the 4th of January in this country. It is my humble prayer Mr. Speaker that whenever the deployment of the army is necessary, they should then seek permission from Parliament so that the army can be deployed with the consent of everyone and the nation because we feel we represent so many people here – [HON. MEMBERS: Inaudible interjections] –
THE TEMPORARY SPEAKER: Order Hon. Members, can you sit down. We agreed with Chief Whips that we are going to give opportunity to two peopleand we have given three. We agreed with Chief Whips that that was the last person – [AN HON. MEMBER: I do not represent a Chief Whip here.] –
HON. CHIKOMBO: Mr. Speaker Sir, the Chief Whip does not represent my constituency, I represent my constituency and it is a right for me to represent my constituency…
THE TEMPORARY SPEAKER: Order Hon. Member, sit down.
HON. CHIKOMBO: So you cannot ask us not to debate, we have to debate and we need to fully ventilate on this item until we are fully satisfied that we have done our best. Give us time for us to debate – [HON. CHIKOMBO: Inaudible interjections] –
THE TEMPORARY SPEAKER: Order Hon. Member.I will chase you out; sit down if you want to be the Chair come here.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Mr. Speaker, I want to thank the Hon. Members for the debate and for the contribution and like I said before, the Constitution empowers this House to make laws for peace, order and good governance of Zimbabwe. So the Constitution envisaged a scenario where there is need to come up with an Act for the maintenance of peace and order and it is there in Section 117 of the Constitution. The assertion that we do not need a law for the maintenance of peace and order is misplaced. Any country in the world requires a law that will ensure that we have peace and order in that particular country. So, I want to urge Hon. Members to accept that…
HON. TSUNGA: On a point of order Mr. Speaker.
THE TEMPORARY SPEAKER: What is your point of order?
*HON. TSUNGA: Thank you Mr. Speaker, not at any time did any member say people who commit crimes must not be tried. We only said that this law in not in line with the Constitution.
HON. ZIYAMBI: Thank you Mr. Speaker, I appreciate that and would like to indicate that it is very important that we have a law that ensures that we maintain peace and order. Ordinarily, when you have a law for the maintenance of peace and order, that law applies where you need to ensure that the rights of people are upheld and this is the reason why we are here. I want to thank Hon. Mayihlome and his team for the contributions that they made. The Committee went out and came up with significant contributions; some of them have been captured in the amendments that I will present. I want to thank them and we have even changed the preamble to indicate what they requested us to do.
I now want to turn to the contribution by Hon. Masenda which was very progressive, he supported the Bill, I thank you. Hon. Biti, I want to thank him for a very good lecture on history lessons. He took us through a history lesson on how the genesis of the Law and Order Maintenance Act came in 1960 and now the POSA Act, I want to thank him for that for the philosophy that he imparted on us. It is unfortunate that he is not here..
HON. MADZIMURE: On a point of order Mr. Speaker.
THE TEMPORARY SPEAKER: What is your point of order?
HON. MADZIMURE: Thank you Mr. Speaker Sir. The Hon. Minister said Hon. Biti was lecturing, he gave us a lecture; we are not at a university here. Hon. Biti was debating, so he needs to withdraw that statement.
HON. ZIYAMBI: Thank you Hon. Speaker, I enjoyed the lecture and it was very insightful and it gave me a lot of information on how the law developed. Hon. Speaker, I just want to indicate that the rights of movement, the right to petition, and the right to demonstrate are not unfettered rights.
I want to draw the attention of Hon. Members to Section 86, that the Committee that they were alluding to also indicated that we should put as a preamble to this Bill. It indicates that these rights which are in the Constitution should be exercised in a peaceful manner. The Constitution, if we read in Section 86, which I with your indulgence Hon. Speaker, I just want to read it. It says, “Limitation of rights and freedoms”. In other words, the drafters of the Constitution in their wisdom acknowledged that the rights and freedoms, some of them are unfettered and they introduced a section that governs the enjoyment of those rights.
When Hon. Members were debating, they did not refer fully to Section 86. It says, “the fundamental rights and freedoms set out in the Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons. The fundamental rights and freedoms set out in this Chapter maybe limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary, justifiable in a democratic society based on openness, justice, human dignity, equality, freedom and taking into account all relevant factors”. So, the drafters of the Constitution acknowledge that there are certain rights that need limitation so that we protect the rights of others.
In the submissions of Hon. Biti, I respectfully differ with him that the rights enshrined in Section 67 are in alienable rights that are unfettered, that you wake up and decide to demonstrate and nobody should question you. The Constitution did not give that provision. Section 117 of the Constitution, I have already referred to it, it exhorts that we make laws that ensure that we live peacefully.
Mr. Speaker Sir, by their very nature, public meetings are prone to disorder as demonstrations in the past that have occurred in this country have shown and have posed a threat to public safety if unruly crowds become too large and cause harm to each other in confined spaces. If you look into the Bill, there is a Schedule that excludes certain meetings from the requirements of the Bill. I want to refer Hon. Members to that Schedule so that they can see some of those gatherings that are excluded from the provisions of this Bill for them to appreciate what we are trying to do.
I listened attentively to Hon. Biti referring to the Hong Kong laws. If we just take everything that we get from other jurisdictions, I have seen videos from Asia in Parliaments, they exchange fists. So, let us be very cautious about adopting some of the things that we see or read. I respectfully submit that he indicated that they will have helicopters and reinforcements. In Zimbabwe, we live within our means. So in order to maintain peace, we need to ensure that we have a regulator where conveners go and then the regulator will assess whether it is in the public interest in terms of peace and security of others for that particular demonstration to go on. You cannot wake up and say I have a right to demonstrate and you go into Samora Machel Avenue and you barricade the roads because you have the right to demonstrate. You start to burn tyres and say Section 67 of the Constitution says I have these rights and therefore, I should be allowed to do that. We ought to have due regards for the rights of others.
I want to thank Hon. Nguluvhe; I think he answered a lot of the issues that were raised by Hon. Biti and others. He fully articulated the issues and I will not go into them.
I am sure Hon. Mavhunga is still around; I just want to address one point he raised. Hon. Mavhunga was concerned that if you are a convener and you go to the regulator and the regulator says that in Samora Machel Avenue, on this particular day, there is another group of people that will be marching, so you cannot march. The regulator is the one who must who go to court to ensure that he gets a court order to stop the convener.
I want to draw the attention of Hon. Members to Section 85 of the Constitution on enforcement of fundamental human rights and freedoms which clearly states that the aggrieved party goes to the court for the enforcement of his rights. So the regulator is not the one who is aggrieved because he has already made a ruling. The one who is aggrieved is the convener. So, he should go to court according to our constitutional provisions to get an order to compel the regulator to allow that person to demonstrate – that is what the Constitution says Mr. Speaker Sir. They may need to change the Constitution if they want that.
Mr. Speaker Sir, I also listened attentively to my learned colleagues alluding to the apartheid laws and history lessons that they were giving me. In fact, the South African law that they alluded to was enacted during the transition period when they had an interim constitution. So in actual fact, it is not an apartheid law as alluded to by the Hon. Members. I think they got a little bit confused in that regard.
Again, Mr. Speaker Sir, I noticed that Hon. Members spent a loit of time on private gatherings, that why are you regulating private gatherings? Again, I draw them to the attention of the Schedule; these are not the concern of the Bill.
Hon. Mavhunga spoke about spontaneous demonstrations; they are not banned but if they are out of hand, the regulating authority must intervene. It is very difficult for anyone to legislate for spontaneity that there is going to be a spontaneous demonstration, so I should put regulations for that. Otherwise, it is going to be difficult and we may invite thugs and other ill-intended people to evade the provisions of the MOPA in order to mask it under spontaneity.
Again, I want to remind Hon. Members that the courts are not the custodians of our public safety. It is the Executive. You cannot expect the courts to do everything. The Executive is the one that should ensure that peace and order is maintained and not the courts. We cannot take our responsibility and heap it on a court but again, it does not preclude an aggrieved convenor to go to court for a remedy.
My colleague Hon. Dube has left. It is sad that the intention of this debate is for us to get ideas that we ensure that we enhance our legislation and make it better but unfortunately, my reading was that some Hon. Members could not wait for my response so that they can contribute when we come to Committee Stage to improve the Bill. Hon. Dube was totally lost in terms of the use of civil liabilities that a criminal court cannot award civil liabilities. It is actually a practice in our court that you can be awarded damages in a criminal court. So I am not sure where he got it from.
It is not unusual for a criminal court to be given civil remedy powers in the interest of the victims of crime. This is there in our criminal code and of course, damages must still be proved but it is well known that evidence tested and accepted at a criminal trial can be adduced in civil court. I do not know why my learned colleague got completely lost to that dictate that is there and is available in our law. There is no strict liability in this Bill and I am surprised that they talk about strict liability being there in the Bill. Infact, if you go to the Clause that they were referring to; it talks about a convenor who did not notify the regulator and the demonstration becomes violent. If it is peaceful, there is no issue.
I am surprised that in their wisdom, they missed that bit that you will be liable for damages if you convene a meeting, did not inform, damage occurs, then you are liable. If it is peaceful, the law is lenient on those issues. I am surprised that there was that misinterpretation that occurred. The list of exempt meetings is provided – I have already alluded to that.
I respectfully differ that the Elliot Case prohibited the police to demand IDs. It only restricted such power to cases where demand is justified. If the demand of an ID is justified, the Elliot case does not arise. I will give an example. Where there is reasonable suspicion that somebody is about to commit a crime or that person is within a vicinity where a crime has been committed, the Elliot case does not say that you cannot ask for an ID. There is misinterpretation of that judgement.
If you look at Clause 14, it says that the police can only demand an I. D. if they suspect the holder of having committed a crime. So, I respectfully submit that in that regard, we were arguing over issues that are already covered in the Bill.
Hon. Sikhala was very animated about Clause 11 – he said it criminalises law abiding citizens yet if you look at Clause 11 and you read it carefully, this clause does not criminalise law abiding convenors but immunises them against civil liability. If you have done everything correctly, and the demonstration turns violent, this clause is immunising you. If you have not followed the due process, you are liable. Hon. Sikhala again – I was hoping that he would be around so that when we debate, we will be able to enhance this Bill in order to do what he was animated and passionate about, to say that I cannot be part of a law that is not for the good governance of men. So I wanted his specific contribution to improve the law where he believes that it is inadequate but unfortunately, I cannot force him to be here.
Clause 14 does not inhibit freedom of movement. We have already addressed this. If you go into the notice of amendments that are on the Order Paper, this has been addressed. I also notice that Hon. Members spent a lot of time debating about the clause on carrying of IDs. That clause if you look at the Order Paper, what they were discussing has already been addressed.
Aside to that, if we have a problem of people without IDs, it does not mean that where there is a reasonable suspicion that a crime has been commited, a police officer must not ask for an ID. In that regard, I want to assure Hon. Members that we spent a lot of time debating issues that had been discussed.
Hon. Phulu, I want to thank you. I want to respectfully differ with him and indicate that the Hon. Member knows very well that our criminal law has no regard for trivial offences such as what he mentions. No criminal court will impose a maximum penalty as regards to that. He spent a lot of time on Clause 12 – on civil liability in certain circumstances of convenor of a gathering and totally misrepresented what is in that clause. I would like to read what is in the clause – for the edification of those who have not read it. It says, “if the convenor of a gathering has not given notice of the holding of the gathering in terms of Section 7 (1), he or she shall be liable at the suite of an injured party”.
If a demonstration is peaceful, no one will be injured. What Hon. Phulu was alluding to, that a demonstration is peaceful and I am being held civil liable for something that has occurred, that is not what is covered in this Bill. It speaks about you not having given notice and that particular demonstration turns violent, some people are injured, property is destroyed and you are identifiable, and the due process of the court has occurred and the court can award damages to the aggrieved party. If a demonstration has occurred and no property has been destroyed, I do not envisage any court awarding damages for nothing having been done.
We spent a lot of time Hon. Speaker, debating issues that are not in the Bill. The Bill is very progressive. I have heard other Hon. Members indicating that it is not progressive …
HON. MUSHORIWA: On a point of order.
My point of order arises from the utterance that the Hon. Minister has just said. The Hon. Minister is aware that Members have been raising issues relating to the Bill. The reason why we are seated and giving ear to listen to him without heckling him is because we are expecting to receive feedback to the issues that we have raised. It is an insult to then say that members were discussing issues outside the Bill. I ask you Hon. Chair to properly guide the Leader of the House.
HON. ZIYAMBI: I will refer to one issue that we spent a lot of time on, the issue of IDs. If the Hon. Member is holding an Order Paper, it is there. We spent a lot of time talking about strict liability. It is not there in the Bill. We spent a lot of time saying a lot of things that are not there and I can name them and I respectfully submit that when I was going through my response, I indicated areas where I said that the Hon. Members and in my response, I would say I respectfully differed with them because those issues were covered. I want to indicate that I was seated there Hon. Speaker taking notes. I got a lot of criticism on the Bill without positive input so that we can improve it.
As a Parliament, we are enjoined to make laws for the good governance of man. So, I was expecting that if you indicate that Clause 11 is wrong, give us positive feedback to say can we change that clause so that it reads like this. That is what I was expecting and I am very happy that the Hon. Members will do that in the Committee. I was to submit Hon. Chair that this is a very progressive Bill. It is not LOMA or POSA. It is a Bill that will ensure that we protect the rights of those that do not want to partake in a demonstration. We have excluded certain categories of governance and it is there in the Bill. A lot of queries or debate was focused on church gatherings for instance. They are already covered in the schedule. So, I respectfully submit that this Bill is very progressive and I move that the Bill be read a second time.
THE TEMPORARY SPEAKER: As the Speaker, I am a bit worried that the learned lawyers, I think I understood them very well, when the Minister responds most of them are not there.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
MAINTENANCE OF PEACE AND ORDER BILL [H. B. 3, 2019]
Committee Stage: Maintenance of Peace and Order Bill [H. B. 3, 2019].
House in Committee
On Clause 1;
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): On the original Bill, I want to insert the short title ‘Maintenance of Peace and Order Bill [H. B. 3, 2019]’.
HON. MUSHORIWA: I want to restate that the short title is actually misleading because the contents contained in this Bill are not there to maintain peace and order. The contents, as we have demonstrated during the Second Reading of this Bill, will actually cause chaos and confusion in this peaceful country of Zimbabwe. To that extent Madam Chair, I will want the Hon. Leader of the House to consider renaming this Bill because I do not think the Maintenance of Peace and Order can actually be the best name for this Bill.
Amendment to Clause 1 put and agreed to.
Clause 1, as amended, put and agreed to.
Clauses 2 and 3 put and agreed to.
On Clause 4:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I propose amendments standing in my name to Clause 4 that;
On page 5 of the Bill, delete sub-clause (1), delete paragraph (b) on line 25 so that paragraph (a) becomes part of the text of the whole sub-clause (1).
Add the following proviso to sub-clause (1) after line 29:
“Provided that on expiry of the prohibition, the regulating authority shall not, within a period of twelve months, renew the prohibition except on good cause shown on oath to a Magistrate having jurisdiction in the area where the prohibition is to take effect, upon an ex parte application by the regulating authority.”
On page 5 of the Bill, in sub-clause (2), add after paragraph (c) on line 36 the following paragraph –
(d) by communication through the traditional leadership in the area where the prohibition is to take effect.”
On page 5 of the Bill, delete in sub-clause (3) in line 38 the words “Minister, and the Minister may” and substitute “the Magistrate Court having jurisdiction in the area where prohibition is to take effect, and the Magistrate.”
HON. NDUNA: I want to propose that on prohibition of certain weapons that; there is proliferation of weapons that are called mabhemba, I ask that they also be contained as ‘specified weapons,’ that they are prohibited during or even after. This is my clarion call so that we do not have anybody unnecessarily being maimed by the mabhemba.
HON. ZIYAMBI: Thank you Hon. Member, it is already covered.
HON. PHULU: Some traditional weapons tend to be ceremonial. We have ceremonial articles and they always turn to be weapons like induku. If someone is going to a funeral, you cannot go without that weapon even at a time when they are prohibited.
HON. ZIYAMBI: Thank you Hon. Phulu. In our discussions, I think we removed the traditional weapons, they no longer appear. Thank you.
Amendment to Clause 4, put and agreed to.
Clause 4 as amended put and agreed to.
Clauses 5 and 6, put and agreed to.
On Clause 7:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendments standing in my name that;
On page 8 of the Bill, delete sub-clause (5) on lines 26 to 29 and substitute –
“(5) Any person who knowingly fails to give notice of a gathering in terms of subsection (1), or of the postponement or delay of a gathering in terms of subsection (3), or of the cancellation or calling off of a gathering in terms of subsection (4) shall, in the case of a contravention of subsection (1), be liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment, or, in the case of a contravention of subsection (3) or (4), be liable to a fine not exceeding level.”
Amendment to Clause 7, put and agreed to.
Clause 7 as amended put and agreed to.
Clauses 8 and 9 put and agreed to.
On Clause 10:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I move the amendments standing in my name that;
On page 11 of the Bill, delete the proviso to sub-clause (2) on lines 1 and 2 and substitute –
“Provided that the convener or any person so authorised by him or her shall, if so requested by a police officer providing security within the radius of any area mentioned in subsection (1) (a) or (b), furnish to the officer proof of the appropriate permission.”
HON. BITI: Hon. Chair, we can protect the High Court of Zimbabwe or the Supreme Court but Parliament is the representative of the people. Therefore, people should be allowed to demonstrate outside the premises of Parliament because we represent the people of Zimbabwe. So, I ask the Minister to exclude Parliament from the list of prohibited places.
HON. ZIYAMBI: Thank you Hon. Chair. In our discussions with the Parliamentary Legal Committee (PLC), I think we amended it and made it more liberal, mindful of the fact that, if you noticed, only about a week or so ago, in Hong Kong where Hon. Biti was referring to, Parliament was stormed. I also remember that it happened in Burkina Faso. However, if you get permission from the Speaker that you are handing in a petition and it is peaceful, that is what we have included. We have removed the way it was. I so submit.
*HON. MADZIMURE: The example being proffered by the Minister; in Burkina Faso today, they are allowed to demonstrate. Let us come up with something that is representative of the people and serves the people’s interests. Once we get to the situation where we become afraid of the electorate that elected us into office and bar the same electorate to come here and air their grievances, it would mean that we are now afraid of our people to the extent that we do not want to show them where we eat from.
This is a retrogressive piece of legislation. This is a bad law. We cannot bar people from coming to this august House of Parliament which is a seat of their power. You know that this is where errant Members of Parliament are found who rarely visit their constituencies for feedback, hence the only place you can find them is here. We are always found in our constituencies. Some of you spend a lot of time here without going to the constituency while benefiting from the coupon allocation. The Speaker should be informed so that should anything unexpected happen, the Speaker would have put adequate security measures in place rather than to catch him unawares
*THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTRY AFFAIRS (HON. ZIYAMBI): There is nothing wrong with the Bill where it requires the petitioners to say that a thousand people will be coming to Parliament to hand over a petition . Where such large numbers of people are gathered, there is a real possibility that there may be disorder.
The Bill is not talking about an application to the Speaker, but it talks of notice being given to the Speaker, that a petition will be handed over to him. Should something happen that is unexpected, the Speaker would have taken steps to ensure adequate security. This Bill is about ensuring peace and order. So there is need to alert the authorities so that they make adequate arrangements to ensure that the particular place is not vandalised. We cannot have a scenario – that is why I made reference to the Hong Kong issue that the Parliament was stormed.
So, I respectfully submit that let us leave it at that. The amendment that we did was in consultation with the PLC and I think it is a very good amendment. I thank you.
*HON. CHIKOMBO: Thank you madam Speaker. The problem is that if people want to come to petition the Parliament they hand over the petition to the Speaker. So for them to seek the permission of the Speaker, maybe the Speaker is inundated with other duties and this may cause a problem. The Speaker should only be informed that petitioners are coming to petition the Parliament. When there is a petition, it means that there are grievances that the petitioners wish to have addressed by the Parliament and the Speaker. So the Speaker should only be notified and not give his approval. I thank you.
HON. ZIYAMBI: Thank you Hon. Chair, I submit that we leave it as it is.
HON. HAMAUSWA: Madam Chair, my understanding of a demonstration is that citizens are blatantly violating a law which they regard as an unjust law. So, what we will do if we are refused to amend slightly, it means people will again demonstrate against this law which we are trying to come up with to bar people from demonstrating. So people will be demonstrating.
If you go to the history of demonstration to Martin Luther King, they would say people would be demonstrating against an unjust law. This will be an unjust law that will attract more demonstrations. So, I want to allay fears that demonstrations are meant to cause disturbances. Demonstrations are meant to register displeasure about an ongoing injustice. I will give you an example of the demonstration that happened in January. Although there were some unfortunate things that happened, the Government realised that people are suffering and introduced those big buses. So, the big buses came as a result of demonstrations.
If you deny people to demonstrate then that will be wrong. The Government was not seeing that people were suffering until the people decided to demonstrate. This is when they decided to bring the big buses and you are now proud of ensuring public transport system, but the Government was reacting to those demonstrations.
So, we are actually humbly requesting the Hon. Minister to accept the amendment that people should be allowed to demonstrate at Parliament and not to seek permission from the Speaker. I agree yes, but just to notify not to seek permission. Seeking permission means now the right will be determined by the Speaker and not by the Constitution. Thank you.
HON. ZIYAMBI: Hon. Chair, I respectfully submit that a demonstration is not an illegal gathering. So we cannot say that a demonstration is an illegal gathering. I also respectfully submit that the reason why we are coming up with this legislation is to ensure that where we have competing rights, somebody wanting to demonstrate while others go about their day to day activities, should there be conflict the law will ensure that peace and order is maintained.
If you can come up with a wording that will ensure that somebody will be notified and ensure that adequate security is there. Then I will be able to concede, but to leave it open to say that nobody should be notified because the purpose of giving the permission Madam Chair is to ensure that the adequate security is guaranteed. We cannot say by informing the Speaker and seeking the Speaker’s permission is to ensure that there is adequate security should anything happen. That is maintenance of peace and order. We took out the provision after consultation with PLC where we required notifying the regulator which is the police and substituted with the Speaker because the Speaker controls, but we cannot have a law that does not have anyone being notified and assessing the security risks and advising the convenor accordingly. I submit that it is okay as it is.
HON. SIKHALA: Madam Chair, the dispute we have with the Minister on the section is that the convener has to give a written application. If the Minister understands what an application is, he will understand that you cannot apply for you to exercise a right that is in the Constitution. Secondly, it leaves all the discretion to the Speaker to decide whether to allow the demonstration to go ahead or not. Parliament must not pass a law that leaves ambiguity. It must have clarity. What will happen in the event that the Speaker turns down the application? Where will be the remedy for those people to exercise their constitutional right because it leaves a lacuna where people will not have a remedy. My suggestion and proposal – I will wait until the Minister comes back because I want to propose an amendment.
THE TEMPORARY CHAIRPERSON: Hon. Sikhala, proceed.
HON. SIKHALA: My suggestion Hon. Minister, is for us to replace the word ‘application’ with the word ‘notification’ on subsection 2.
Hon. Sikhala having liaised with the Minister of Justice, Legal and Parliamentary Affairs.
Madam Chair, the Minister has now shown us exactly the Clause that we wanted to amend to look like. Thank you very much. It has been amended.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): We have agreed. It is okay.
HON. HAMAUSWA: Thank you Madam Chair. It is important for me to say this. There is misconception we are hearing that the Bill is just solely about maintenance of peace and order. My understanding is that the Bill is about reform because POSA has been found to be unconstitutional. So this Bill is about amending POSA yet there is no indication that this Bill is repealing POSA – [HON. MEMBERS: It is there.] – Where? Yes, but Madam Chair, the fundamental aspect is that the Bill which we are debating is about reform. It is about deepening democracy. So we should not focus more on trying to punish people or to allow the killing of people. It is about reform.
HON. BITI: I have one small amendment. In the Schedule, can report back meetings by a Member of Parliament to his constituency be exempted Hon. Minister? Can I wait for the Hon. Minister?
Hon. Biti having liaised with the Minister of Justice, Legal and Parliamentary Affairs.
Amendment to Clause 10 put and agreed.
Clause 10, as amended, put and agreed to.
On Clause 11:
HON. BITI: On Clause 11, we propose that where the regulating authority wishes to issue a prohibition notice or order to the extent that a prohibition notice is a devaluation and subtraction of a right that is already given in the Constitution; the right under Section 59 and 56, it should be the regulating authority itself that must go to the magistrate court to seek an order concerning his decision because he is taking away a right. However, the regulator is saying instead of starting at 12, start at 10, where he is making a regulatory directive as opposed to a proscriptive decision amounting to the taking away of a right then we can appeal to the magistrate court. But where he is taking away the right and proscribing, it is he who must go to the magistrate court and justify the taking away of the right. So we seek such an amendment Hon. Speaker.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon Chair. If you go to Clause 8, it speaks about consultations, negotiations, amendment of notices and conditions with respect to gatherings to avoid public disorder. So, it is not just that a regulator will just wake up and say I am banning this and that. If you look at it, there are negotiations that happen. However, I want to go to the Constitution Section 85, on enforcement of fundamental human rights and freedoms and respectfully differ with Hon. Biti. If you go to Section 85 of the Constitution, it says, “any of the following persons namely:” (and then they are listed) “are entitled to approach a court alleging that a fundamental right or freedom enshrined in this chapter has been or is likely to be infringed and the court may grant appropriate relief.” So, what the Constitution provides for is he who alleges his/her right is being infringed approaches the court for an appropriate relief. So, in that regard, according to this Section, what we are proposing is consistent.
HON. SIKHALA: Hon. Minister…
THE TEMPORARY SPEAKER: Hon. Sikhala, can you please address the Hon Member the way that he should be addressed.
HON. SIKHALA: Iye ati Sikhala wani. Did he not say Sikhala? Our first dispute is on the appeal that should be launched to a magistrate’s court. Here we are talking about it appealing against a fundamental right which has got constitutional connotations. The only court with inherent jurisdiction to give constitutional interpretation that to finality is the high court. Secondly, there is no prescribed time within this provision. For how long should the magistrate court dispose of the appeal if a prohibition order is appealed? The application for a public gathering has been prescribed for seven days. So within seven days, for how long should the magistrate dispose of the appeal for a prohibition order? On the other hand, this is a denial that has been hidden under an appeal to the magistrates court. What if a prohibition goes to the magistrate and he says no, the prohibition order is not the final order. So if you give a provision that the decision of the magistrate court would be final, the regulating authority would appeal to the High Court and suspends the decision of the Magistrate Court and still the people will be waiting to be given determination. Why do we not have a provision that the decision of the Magistrate Court on the appeal against a prohibition order by the regulating authority is final? Then we understand that this will give finality to any dispute that would have emerged. You have left it open ended with no time prescribed and that becomes a complete denial of the right. That is our contention in terms of this provision Hon. Minister.
HON. BITI: Can I also add before he responds. Section 85(1) which the Minister refers to is the locus standi provision, it is the access provision to a court where you allege that your rights have been infringed. So, Section 85 (1) (a) allows you to bring an action in your own individual right. Section 85 (1) (d) allows you to bring an action in the public interest and so forth. But here our point is you have a constitution that has given the citizen certain rights and one of those rights is the right to demonstrate peacefully and constitutionally, Section 59, the right to freedom of assembly, the right of gathering and the right of freedom of political expression, Section 67. Where the regulating authority now uses its wisdom and says I am prohibiting a gathering or a meeting he is taking away that right. So, if he is taking away that right that you have been given by the Constitution, surely and with great respect, the onus is upon him to go to an independent impartial court, the magistrates’ court to say, your worship, in my considered opinion, I am denying this person this right to demonstrate on Christmas day because on Christmas day, we all want to be in church and in our homes. He provides a justification only in those circumstances.
So, because he is taking away the right, he is the one who has to go to the court. Section 85 (1) to (e), designed for a situation where there is an infringement not an administrative infringement, which is the role of the regulating authority, so that distinction needs to be made. So Minister, if you are the regulating authority and you want to prescribe by right to take away my right, go to the court to justify the taking away of that right. That is our simple point.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTAR AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I think I have already answered. There is a right holder and somebody who has to ensure that those rights are enforced and the interpretation that is being given by Hon. Biti is not what the Constitution is saying. It is speaking about enforcing your right and it is not discriminating to say am I enforcing it against the person or this person or this organ. It does not say that. It says if you want to enforce your right, this is what you do and it is very clear and very unambiguous and I respectfully submit that let us leave it as it is. I thank you.
HON. SIKHALA: Madam Chair, the Minister did not answer my request where I said that the appeal in the magistrates’ court should give finality to a dispute.
HON. ZIYAMBI: Thank you Hon. Chair. His question was in two parts. He said it does not give the time line, it gives and if you go to 11 subsection 2, it says these appeals must be dealt with on an urgent basis and in any case, before the date of the proposed gathering. So, it is very clear on that point but what I want to caution is, let us not get into this idea that we give the magistrates’ courts finality. That is not okay but in terms of insuring that as quickly as possible, the case is disposed with. This Claude has already given provision for that but let us be very careful about giving the magistrates’ courts the final decision making. I thank you.
HON. BITI: What I propose Hon. Minister Sir, is that there are instances for instance, where magistrates’ court sit at any time to grant orders. So, in the case of search warrants, the police go to the magistrates’ courts anytime. So, it is not a new thing and the reason why police go to magistrates to seek search warrants is because they are invading the right to privacy which is in the Constitution, I think Section 54. So, it is already happening and the police are already going to the magistrate’s court where they are seeking to invade someone’s rights. So in this case, we are saying, where they want to take away the right to process, they must report and seek their order on due process and your safeguard now Hon. Minister, is that, the due process, the decision of the magistrate must be give within 48 hours from the time that the regulating authority makes an application for confirmation of his decision to deny permission, So, you are protected. So, the Criminal Procedure and Evidence Act already obliges a policeman to go to the magistrates’ court, where he is taking away rights for instance, a search warrant. So, we are not creating anything new. Thank you.
HON. ZIYAMBI: Thank you Madam Chair. I think that I respectfully again differ with Hon. Biti in that the reason why we need a search warrant when you want to come to my house – 1) is because you do not ask for a search warrant before you notify that person and that person must be able to have something that will produce that you are limiting their rights and it affects the right of only one party whereas in this case, we are talking about rights of demonstrators. They affect the rights of others. A warrant affects your rights as an individual and they should be proof that you have a court order that warrants you to come and search my property. So that policy does not unnecessarily infringe on that particular individual’s rights.
Whereas, when you look at the right to demonstrate, we are trying to insure that we insulate the innocent party from infringement of their rights. So, the comparison of a search warrant and what we are tyring to achieve by this, I respectfully submit that it is a bit different and I urge my Hon. Member or colleague to accept that. I thank you.
HON. PHULU: Madam Speaker, we suggest that the middle way is to say that, the appeal does not suspend because there is the word which says I have a right to demonstrate. So, you could simply change the proviso there that says provided that they do not have an appeal shall not have the effect of suspending the prohibition order appealed against. Then, you use subsection 2 to ensure that the appeal is dealt with expeditiously before the date of the demonstration. That is very reasonable.
HON. ZIYAMBI: Thank you Hon. Chair. While I want to accept what he is saying, I reject it for the simple reason that if you go to Clause 8, there are reasons that are given by the regulator why they are refusing and those reasons pertain to the maintenance of peace. If you go to Clause 8, and look at the heading, it says here, ‘consultations, amendment of notices and conditions with respect to gatherings to avoid public order’, now if you are to say that it does not suspend where there is a real possibility that there will be public disorder, we might as well not have that clause. So the reason why it is suspending is for the magistrate to interrogate and see whether there was reasonableness in the regulator’s reason for refusing to grant the demonstration. It indicates that it has to be done on an urgent basis. So I respectfully submit that if we do that we might as well be saying let us remove the clause which might be very dangerous for the maintenance of peace and order, I submit.
HON. BITI: If you look at subsection 2 of Section 11, it says an appeal in terms of subsection 1 shall be dealt with on an urgent basis and in any case before the date of the proposed gathering unless due to the fault of the convener the appeal is not lodged timeously but there are no consequences for the magistrate or for the DISPO, in the event that the appeal is not dealt with timeously. So as a compromise, if the appeal is not dealt with timeously before the holding of the procession then it must be allowed to take place. You cannot punish the appelant the convener without also describing or dealing with a situation where the appeal for some reason is not processed and dealt with by the magistrate court before the hearing or the happening of the proposed demonstration or march. That is why he is proposing that, to have a balance on interest because the regulatory authority is taking away the right to demonstrate. When an appeal is noted, it must suspend the decision being appealed to give the regulatory authority and the magistrate court the incentive of hearing the appeal on an emergency basis within the prescribed 48 hours before the hearing. So the suspension becomes an incentive for public authorities to act timeously because you have not given any incentive. So to give incentive to the policeman and to the magistrate to act, the appeal suspends.
HON. ZIYAMBI: Thank you Hon. Chair, the section gives guidelines to the magistrate on the timeline when the appeal must be heard – [HON. BITI: What if he does not sit.] – It is very dangerous to say where indications are there, that a gathering may be violent you then say an appeal suspends the prohibition – [HON. BITI: What if he does not sit.] – We also have to be mindful that what is the purpose of this Bill? It is to protect the innocent people who are not demonstrating. That is the reason why if you look at section 86 of the Constitution, it speaks about those rights that can be limited. The right to demonstrate is one of them because we want to protect the innocent people, those that are not partaking in the demonstration. So, it is very dangerous to say where the regulator has followed due process and negotiations happened and indeed the convener has been notified within the prescribed timeframes that we have these red flags, can you alter the way you want to do things and the convener refuses, it is incumbent upon the convener to then approach the magistrate court for a remedy. The Bill now says, it must be heard within the timeframe before – [HON. BITI: What if he does not sit.] – So Hon. Chair, I submit that we cannot have a default permissions, it is very dangerous for the maintenance of peace and order.
HON. PHULU: On a point of order.
THE TEMPORARY CHAIRPERSON: What is your point of order?
HON. PHULU: The challenge is that if the magistrate does not sit – [HON. BITI: What happens?] – It means that the whole process lapses and the people who want to demonstrate have to start again. If the magistrate does not sit, it lapses. It is a vicious cycle which does not have a remedy; which is why the suggestion is that – put the pressure on the State institutions by ensuring that the appeal does not lapse, the appeal does not suspend so that if the institutions do not take action then the processes go ahead. It is an absolute derogation from the right which becomes unreasonable if you take it into account. If the magistrate continually does not sit, there is no remedy.
HON. ZIYAMBI: Hon Chair when we make laws, we make laws on the assumption that those that are given the responsibility to adjudicate will do their work judiciously. We do not make laws on the basis that a magistrate will not carry out their work. In any event, if the magistrate does not comply with what the law says, there are remedies that are already there to ensure that – [AN. HON. MEMBER: Which one?.] – you report the magistrate and the due process of the disciplinary action will be taken against that person. We cannot have a scenario where we allow a threat to human life to occur on the basis that a magistrate will not sit and on the assumption that a magistrate will not sit. Where there is a real possibility that if the demonstration goes on, you cannot say by virtue of going to a magistrate that suspends the prohibition order.
Secondly, you cannot then legislate to the effect that you want people to die because you are holding a right of a demonstrator. It is not a non-derogatory right, the right to demonstrate and it is covered in section 86 of the Constitution that, you have to do that right with regard to other rights and this is what we are trying to do. So I submit that we move on Madam Chair – [HON. BITI: What if he does not sit?] –
THE TEMPORARY CHAIRPERSON: Order Hon. Members. Hon. Minister, may you please approach the chair?
HON. SIKHALA: Madam Chair, there is an objection.
THE TEMPORARY CHAIRPERSON: I think the ayes have it. – [HON. MEMBERS: Inaudible interjections.] – [AN HON. MEMBER: No, why should we behave that way.]
HON. SIKHALA: On a point of order – [HON. MEMBERS: Inaudible interjections.] – You cannot throttle debate. Why do you want to throttle debate? – [HON. MEMBERS: Inaudible interjections.] – I stood up – [AN HON. MEMBER: Madam Chair, can you allow us to debate.] –
THE TEMPORARY SPEAKER: Let us follow procedure. That is why I called the question for you to divide the House. Let us bring this issue to finality. – [AN HON. MEMBER: E. D. must go.] –
Hon. Members from the left side of the House started chanting a song – povo yaramba zvema disnyongoro ad haiwaiwa ndezve change.
THE TEMPORARY CHAIRPERSON: Order, order Hon. Members! Hon. Sikhala, I give you the floor.
HON. SIKHALA: I wanted to make my contribution and impress upon the Minister when he is here. He has gone out. I will contribute when the Minister is back because I want him to give me an answer.
THE TEMPORARY CHAIRPERSON: Order, Order! I think let us at times be able to observe our rules and orders. Whenever we have got a dispute that we might have, when we need to get to finality, I put a question and then what you have to do is to call for the dividing of the House. So, I think next time when we have such a situation – [HON. MEMBERS: Inaudible interjections.] – That is the procedure. We are going to. At least I have communicated. As far as I am concerned, I have communicated just in case you have forgotten your rules and orders. So, we are going to proceed, because a record has to be set, so that we can proceed.
HON. SIKHALA: Madam Chair, before making my contribution, I do not know whether the rules of the august House have changed. Is food now allowed to be eaten here because we are seeing Hon. Samkange and the Minister are eating – [HON. MEMBERS: Inaudible interjections.] –
Madam Chair, we want to persuade the Minister…
THE TEMPORARY CHAIRPERSON: Order, Hon. Member. Hon. Tsunga.
HON. SIKHALA: Why we want to persuade the Minister over our arguments is that the Clause reads as follows:
“An appeal may be – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY CHAIRPERSON: It is the early hours of the day, let us respect each other. Hon. Kureva, leave the House – [HON. MEMBERS: Inaudible interjections.] –
-[HON. CHIBAYA: Hakuna anodzinga munhu, haasi pa Chair ya Speaker. hakuna, hakuna.] –
On Clause 12:
HON. PHULU: Section 12 provides for civil liability. It is one of the most important sections or clauses in this Bill. I suggest that if Clause 12 ended at paragraph 30 and modify subsection 2; sub clause 3 could be cut out because what it does is that it is superfluous but it reverses honours and places ability on any convener, regardless of what they have done. As our laws stand now, they are able to deal with the issue of liability in terms of what is in paragraph 30.
The joint ability as well could be I am sure, where you have a convener whose hands are dripping with blood and the other convener is clean. So, each convener must be able to prove their own case but to say that they are liable jointly and severally is rather unfair. I just want to refer you to that where in paragraph 30, where we say ‘occurring at the gathering’, we put a full stop there. We submit that this will be adequate. Sub-clause 4 regarding derogation is in order so we suggest that paragraph 35 and paragraph 40 could be removed and the joint and several liability clause modified to make this section a bit fair. Thank you.
HON. ZIYAMBI: Hon. Chair, I respectfully submit that when I responded the last time, unfortunately you had left the House. I addressed this issue of Clause 12 and indicated that there is no strict liability that is there. If you read the Clause closely, you will realise that the convener that is being penalised is the one who did not notify and the demonstration became violent. So, it is not saying every convener regardless of the circumstances will be liable. You cannot be liable when the demonstration was peaceful. So, the mischief that is being captured here is you decided to hold a demonstration, you did not notify the regulator and certain properties are damaged or maybe somebody is injured, you become liable for the damages.
You also appreciate Hon. Member that even in criminal matters, the courts sometimes award damages to individuals. If you look closely at this Clause, it is not giving a blanket permission to say that even a peaceful demonstration. The law is not concerned about little petty offences. It takes no notice of those. If the demonstration was peaceful, no court will award damages for nothing that has not happened. In any event, the processes of quantifying damages, everything will be done. So, this Clause is only concentrating on those. It actually insulates on those that have given notice. I submit.
HON. BITI: With great respect Hon. Chair and Minister, Section 12 is very dangerous – [HON. ZIYAMBI: Where is the danger?] – I will illustrate the danger. Firstly, this provision should not and cannot impose a new form of liability beyond one that is found in the common law of delict for a delictual wrong for a fault to be committed; there must be wrongfulness and unlawfulness, two concepts. Wrongfulness denotes that there is a duty of care, causation and correlation between my own actions as the defendant or in this case as the convener and what would have happened in the public demonstration.
If you look at Clause 12, particularly subsection 12 (1) (a) “has not given notice of the holding of the gathering in terms of Section 7 (1)”. It is a fortiter thing. It is a small gathering of people that are trying to petition their councillor that refuse is not being collected and this man is in Dotito or Chiendambuya. In that demonstration, a mad person comes and rams his car and four people are killed in that procession. There is no causality between my failure to give notice and what has happened. Why should I be liable? So, this provision cannot create anything beyond what the law of delict permits but worded as it is, it is creating an extra burden.
Section (b) has not given any notice of the holding of the gathering. So there is no connection. This provision allows you to net where there is no connection. Therefore, it is imposing strict liability. Section (b) says, “fails or refuses to comply with the best of one’s ability”, the agent provocateurs come and swamp a demonstration that was supposed to be peaceful. Take 1 August, 2018, soldiers came and shot people and it was not reasonable foreseeable. Why should the convener then be liable because someone is lying dead on the street? So, causation is important to the extent that this provision is imposing liability where there is no causation and correlation is too wide. Once it is too wide it breaches Section 56 of the Constitution of Zimbabwe, the equal protection of a law provision and the due process provision.
If Hon. Minister, you agree with us that this provision is not imposing extra obligations other than those that are found in the law of delict, then why do you need it because I can sue you? If you call for a demonstration where I am injured, I can sue you at Common Law and if I can sue you at Common Law, why then do you need it? You need it because it is imposing extra onerous obligations. If that is the case, then it is unconstitutional.
HON. ZIYAMBI: Hon. Chair, I listened attentively to Hon. Biti. He said seven people in Dotito congregate and a mad person comes and rams into four of them. So, why should the convener be liable? According to this Act, he is not and I will show you why he is not – [HON. MEMBERS:Inaudible interjections.] – If you read very careful and I explained that if the convener of a gathering and if it is peaceful there is no liability. It goes to say, “he or she shall be liable at the suit of an injured party for any loss or damage to property and injury to or death of a person occasioned by any public disorder or breach of peace caused by or arising out of or occurring at the gathering – [HON. MEMBERS: Inaudible interjections.] – Hon. Chair, let me explain. If somebody comes and we are at a gathering, rams into that crowd, the convener is not the one who caused that and it is not occasioned by that. This Bill is dealing with public order and controlling – [AN HON. MEMBER: Chibvisai rises out of]. – It is not arising out of that. This is an individual with a car that rammed into these people, why are you saying that if a mad man comes and rams into people who are peaceful, then there are a liability – there is nowhere in the Bill that is saying so. I think that interpretation is very dangerous and wrong.
Hon. Chair, this clause insulates those who have followed due process. If you would have made the necessary notifications, you are insulated. Those who disregard the notifications, the Clause 8 provisions are the ones covered by this. I respectfully submit that this is very necessary and important to ensure that those who decide to disregard the law in terms of public order and security ensure that the innocent people are protected. This provision is very necessary. I so submit.
HON. SIKHALA: Madam Chair, what the Minister is not realising is that he has qualified on how strict liability will come. It will come when somebody incites or encourages persons taking part in the gathering to engage in the conduct which amounts to or could reasonably be expected to lead public disorder breach of peace. However, the provision in the same Act, when we go ahead is self-contradictory. He qualifies first…
The Minister of Justice, Legal and Parliamentary Affairs having approached the Chair.
HON. SIKHALA: I will wait for him. I will wait for you.
Then you go further after clarifying on how civil liability arises. You then say, arising out of or occurring at the gathering where the honky shoe is arising out of the gathering; whatever happens at the gathering, whether the person is a victim or not. So, when he gave an example of seven people gathering in Dotito and a mad man comes and causes damage, it is arising out of that gathering. Are you getting me Hon. Minister? It is simply to remove ‘arising out of.’ Those three words because it says ‘arising out of,’ so that it reads…
HON. ZIYAMBI: Thank you Hon. Chair. We have agreed and I accept. I am happy that they understood where I was coming from. Hon. Chair, we are making progress. I think they are now having another Committee there. Hon. Chair, on Clause 12, I propose that Clause 12 (1) (c) we expunge it from the Bill and we go to the sentence that starts with ‘He or she shall be liable’ and we end it by saying ‘breach of peace caused at the gathering.’
Then Clause 12 (2), to protect those innocent conveners to include it to read as follows, “where there is more than one convener of a gathering their liability under this section shall be joint and several unless the other convener or conveners can show on a balance of probabilities that they were not a party to any breach of the subsection.” I so submit Hon. Chair.
Amendment to Clause 12 put and agreed to.
Clause 12, as amended, put and agreed to.
On Clause 13:
HON. SIKHALA: Madam Chair, I propose the complete obliteration of subsection 4 which says, ‘the degree of force which shall be so used shall not be greater than is necessary for disbursing the persons gathered and shall be proportionate to the circumstances of the case and the object to be obtained.’
Madam Chair, the section does not qualify what is proportionate force and also it is subjective on what proportionate force is. So, I propose Hon. Minister, that we expunge the entire subsection 4 on the basis that it does not qualify what proportionate force is.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I respectfully submit that the Hon. Member knows that there are certain times when demonstrators decide to disobey the law. Even when told to move, they can decide to disregard that and attack even the law enforcer. What this provision is trying to say is, our law enforcement agents that are well trained are able and capable then to interpret what reasonable force is. You cannot completely leave it and you say that somebody who is very violent should be allowed to be violent because we cannot describe what proportionate force is.
HON. SIKHALA: Qualify it. If you check subsection 5, you have qualified it.
HON. ZIYAMBI: Yes, tell me how to qualify it because the proportionate force differs with circumstances. Sometimes it is not even immediate threat to my life. There are two issues. There is immediate threat to the life of the enforcer, but there may be need to disperse those people. So there is a real possibility that if this crowd is not dispersed there is danger that they may destroy property. It may not necessarily be a threat to my life. So the proportionate force, let us find ways of defining what we want because it is necessary that at times you need to disperse them for the purposes of securing buildings.
There are times when you need to disperse them because there is eminent danger to other people’s lives. So, this clause was trying to cure that mischief to say that in dispersing them, use force that is necessary under the circumstances to ensure that as much as possible no harm is done, but it is sufficient to ensure that those people are dispersed.
HON. PHULU: Madam Chair, if I may refer you to paragraph 25, line 25, if after (b), we remove those three lines; that same way, “for that purpose, if he or she finds other methods to be ineffective or inappropriate, order the use of force, including the use of firearms and other weapons”. It is in line with the Report that was submitted. If that line 25 is just removed.
HON. ZIYAMBI: Is it still 4.
HON. PHULU: Yes.
HON. ZIYAMBI: It is not 4? I think you are now ahead.
HON. PHULU: I am sorry, that is on five.
HON. ZIYAMBI: Mr. Chairman, what we can do is, the police may publish the rules of engagement, how they use the proportionate force because the use of proportionate force depends with circumstances. You cannot become very prescriptive. It may be threat to life, threat to property. If you read it, the way it is couched, it is not. How do you want it couched?
After Hon. Members consulted with the Minister of Justice, Legal and Parliamentary Affair.
Thank you Mr. Chairman. On Clause 13, (4), I propose the following amendment. “The degree or force which may be so used shall not be greater than is necessary for disbursing the persons gathered and shall be reasonable and proportionate to the circumstances of the case and the object to be attained”.
Amendment to Clause 13 (4), put and agreed to.
On Clause 13 (5):
HON. PHULU: A proposal by the Committee to say that, ‘may for that purpose, include the use of firearms’, the way it is crafted right now is still enough to be able to do that but if you write it, it motivates action. Just remove the use of firearms and weapons. Of course that does not mean they may not be able to do so but if you legislate it, it will encourage action.
HON. ZIYAMBI: Mr. Chairman, on Clause 13 again, sub paragraph (5), the last sentence in paragraph (a) or (b), a full stop after that and we expunge the rest. It will read like this: ‘if any person who participates in a gathering or any person who hinders, obstructs or interferes with persons who participate in a gathering (a) kills or seriously injures or attempts to kill or shows a manifest intention of killing or seriously injuring any person or destroys or does serious damage or attempts to destroy… a police officer of/or above the rank of assistant inspector may order the police officers under his command to take the necessary steps to prevent the action contemplated in paragraph a and b. So, at the top there in sub-paragraph 4, we have included a clause to say they may use reasonable and proportionate force and that will cover what we had expressly indicated that they can use the fire arm and we expunged it.
Amendment to Clause 13 put and agreed to.
Clause 13, as amended put and agreed to.
On Clause 14:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendment standing in my name that: on Clause 14, Persons to carry identity documents. On Clause 14, Persons to carry identity documents, I propose the following amendments: On page 14 of the Bill, delete sub-clauses (2) and (3) on lines 1 to 4 and substitute (the subsequent sub-clauses to be renumbered accordingly).
(2) If a police officer has reasonable suspicion that any person in a public place has committed or is attempting to commit an offence, the officer may require the person to produce his or her identity document.
Amendment to Clause 14 put and agreed to.
Clause 14, as amended, put and agreed to.
On Clause 15:
HON. BITI: Chairperson Sir, the powers under Section 15 that are given to a police officer are drastic. The powers allow a police officer to cordon off an entire area and do whatsoever he wants. Surely, surely that amounts to a de facto imposition of a state of emergency. Even in the current Constitution, only this Parliament can impose a state of emergency. I want to draw the Hon Minister’s attention to the remarks by Makarau J. A in the case of Dare vs Newbert Saunyama and the Minister of Home Affairs, which outlawed Section 27 of the Public Order Security Act. Section 27 of the Public Order Security Act allowed a policeman to impose a blanket ban on public demonstration for a maximum period of three months. What Justice Makarau said was, once you have got a dragnet, something that nets everyone innocent or otherwise, you have got a problem. The impact of cordoning is that you are now incriminating anyone and everyone caught in the net. The dragnet provision does not stand the scrutiny of the law. So, Section 15 is clearly unconstitutional and I refer to the recent judgment of the case of Dare vs Saunyamaand the Minister of Home Affairs. It is a dragnet provision. Remember Chairperson, if a police officer thinks that a crime has been committed in any street on reasonable suspicion, he can still go there. So why do you need to cordon off and punish innocent people? It is a dragnet provision. So in fact, you are causing a de facto state of emergency and you cannot do that. That is what Makarau calls a dragnet provision and dragnet provisions are unconstitutional because they drag everyone.
HON ZIYAMBI: I believe Hon. Chair this is a necessary Clause to ensure that we deal with public disorder and preserve certain properties from eminent danger. So, this clause does not take away any rights but it is only meant to ensure that they are limited in so far as going to certain areas is concerned, which has been cordoned off for the purposes of ensuring that they are protected from public disorder. I believe that this is normal police work and if we take this away from them, what will they do? So, I respectfully submit that we should leave this as it is.
HON. SIKHALA: Mr. Chairman, it is unfortunate that the Minister is defending what I can call a Gukurahundi clause in this Bill. Specifically as described by Hon. Tendai Biti, this is purely a declaration for a state of emergency. Hon. Minister, I want to refer you to Section 57 of the Constitution that provides for the right of citizens to privacy. For the avoidance of doubt, let me read out the provisions of Section 57. It says, “every person has the right to privacy which includes the right not to have their homes, premises or their property entered without their permission”. their are persons, homes, premises or property searched. In this Gukurahundi clause, which we know in the Law and Order Maintenance Act of 1960, the same clause was used during the period of Gukurahundi in Matabeleland to cordon off areas, round them up, subjugate them to the inhumane and degrading treatment; kill thousands and then leave the bases. You cannot give a provision that gives police officers arbitral rights of search to persons because you have cordoned off an area you simply just call anybody who even crosses that area and search that person in contravention of Section 57 of the Constitution,
Mr. Chairman, those who have experience of Gukurahundi knows how the cordoning off of places has caused genocide. This is a genocidal clause that will cause many people to cry tomorrow.
HON. ZIYAMBI: Thank you Hon. Chair. I propose amendment to Clause 15 on cordon and search and expunge (a) and (b) on subsection 1 and insert so that it reads as follows, “A police officer of or above the rank of inspector may establish a cordon around any area if he or she considers it reasonably necessary in the interest of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest”.
Amendment to Clause 15 put and agreed to.
Clause 15, as amended, put and agreed to.
On Clause 16:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS: On Clause 16, I propose amendments as reflected in the Order Paper that:
On page 15 of the Bill, insert after line 15 the following sub-clause –
“(4) For the purposes of this section a “check point” is any barrier otherwise than on a road that is clearly signposted as a police checkpoint where one or more police officers may conduct security checks in terms of this section on persons, vehicles or vessels passing through the checkpoint,” with an amendment where it says one or more police officers to read two or more police officers to read two or more police officers.
Amendments to Clause 16 put and agreed to.
Clause 16, as amended, put and agreed to.
Clause 17 put and agreed to.
On Clause 18;
HON. BITI: Thank you Hon. Chairperson. The Constitution permits the President to deploy members of the Zimbabwe National Army to assist the policing of law and order in the country. But the Constitution does not set out the circumstances in respect of which the President can exercise that power. We submit Mr. Chairman and Hon. Minister, that this is power and discretion that should be exercised very sparingly for the simple and good reason that the responsibility of policing remains that of the civilian institution known as the Zimbabwe Republic Police. So, we propose that section 18 put a restrictive manner, a restrictive regulation before the President actually deploys so that deployment is only met in exceptional circumstances. So we therefore propose that section 18 (ii) reads as follows, we propose a restriction to subsection (ii) so that the power is exercised when there are no other options, just to put some breaks. We can suggest an amendment – [HON. MEMBERS: Inaudible interjections.] –
THE TEMPORARY CHAIRPERSON: Order Hon. Members.
Clause 18 put and agreed to.
On Clause 19:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I propose amendments in my name to Clause 19 that:
On page 17 of the Bill, in Sub-clause (1), delete on line 1 the words “used for the purpose of or in connection with the commission of the offence” and substitute “used to commit or enable the offence to be committed.
Amendment to new Clause 19, put and agreed to.
Clause 19, as amended, put and agreed to
Clause 20 put and agreed to.
On Clause 21:
HON. PHULU: Clause 21 talks about summary trial, so I know that I have discussed this before but what is the meaning of a summary trail? Does it mean that it is not a normal trail where you go through all the charges in the normal way and so forth because we are worried about the meaning of summary trail?
HON. ZIYAMBI: In cases of violence where a lot of people are involved for the purposes of dispensing justice, you need to do these summary trials. So, it is perfectly in order and in all jurisdictions, I remember in England when there were demonstrations; they did exactly the same. I submit.
HON. SIKHALA: The Minister wants to justify summary trials and to him he said it is provided for and protected by the Constitution. The Minister is a legal practitioner on his own standing and he knows what he has been saying is not correct.
Madam Chair, an accused person in terms of the Constitution Section 70 of the Constitution, has the right to be given adequate time and facilities to prepare for his or her defence. Where does this provision of ‘summary trials’ qualify the constitutional need of being given adequate time and facilities to prepare for the trial. The summary trials are against the principles of fair trial. Fair trial is no longer a legal concept but is now a constitutional provision within our own Constitution in terms of Section 69.
For the avoidance of doubt, Section 69 says, every person accused of an offence has a right to a fair and public trial within the reasonable time before an independent impartial court. Madam Chair, this right provided for in terms of Section 69 is different from all other rights the Hon. Minister was talking about. If you go to Section 86 of the Constitution, it classifies what is called limited and unlimited life. Sub section 3 of Section 86 says “no law may limit the following rights enshrined in this Chapter and no person may violate them:-
(a) The right to life except to the extent specified in Section 48.
The right to human dignity, the right not to be tortured or subjected to cruel, inhuman and degrading treatment, the right to a fair trial, that is Section 86 (3) (e). Summary trials that do not give an accused person the right to a fair trial, do not qualify to be part and parcel of our law. That provision, whether the Minister agrees with us today or not is absolutely unconstitutional. It violates an ‘unlimited’ right that is protected in terms of our Constitution.
Hon. Minister, you are a legal practitioner, your duty and role is for you to protect constitutionalism. The summary trials are unconstitutional, it violates an ‘unlimited rights’. So these are my submissions.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Hon. Sikhala is very correct that an accused has a right to a fair trial. A summary trial does not mean that you rail road the trial. It simply means that you are brought to court promptly without an indictment and the trial has to proceed. What it simply means is that you dispense with the other activities and you bring the accused to court.
If the accused needs a legal practitioner, it is enshrined in the Constitution and it is right to say I want to prepare my defence and it does not mean that that right will be taken away. Hon. Sikhala, what it is labouring under is exactly what you want to achieve.
HON. BITI: What the Minister says is correct. An accused person is entitled to due process and his rights to fair trial cannot be taken way. If that is the case, it means that the state and the Minister do not need Section 21 because you already have that right.
Assure us that summary trial does not mean fast track trial. Assure us that you are not getting any extra advantage. Other than that, it is a normal trial except that it can obviate indictment. What is the mischief? Why do you need that provision because you have that already at Common Law and Criminal Procedure and Evidence Act. Just assure us.
HON. ZIYAMBI: Hon. Biti was quoting Veritas extensively and I want to quote them for the first time.
HON. BITI: I did?
HON. ZIYAMBI: Yes on Second reading speech.
HON. BITI: I did not.
HON. ZIYAMBI: I withdraw. Let me just say this and explain Clause 21. It simply gives magistrates sentence people convicted of crimes under the Bill on summary trial. With respect to summary trial in the context of magistrate courts, it is a technical term and means a trial which takes place without having a previous hearing of evidence before a magistrate. It does not mean a kangaroo or rushed trial as those that were conducted. It is very clear
HON. PHULU: Besides, Veritas suggests that the Clause will make perfect sense even if you left out the word summary. The sentences now – 3, 10 and 20 years; we think they are excessive for the kind of offences that we are talking about. The sentencing jurisdiction is just too much. Remember the sentences for jurisdiction did not go as much as that. 20 years for demonstration is too much.
HON. BITI: Hon Minister, remember that jurisdiction of the regional magistrate is 12 years. So why are you giving him more than the 12 years that he is there?
HON. ZIYAMBI: In terms of rape cases, our magistrates are allowed to. He was speaking of jurisdiction of a regional magistrate that they do not have – [HON. MEMBERS: Inaudible interjections.] – then that is another argument but I think in terms of jurisdiction, they have.
HON. SIKHALA: I want to persuade the Minister, Minister huyai kuno musangomanya kuvakomana uko.
HON. BITI: Dias ngaachiita Member of Parliament please.
HON. SIKHALA: I want to ask the Minister to remove Subsection 4 of Section 21. It says that, “the President may, by proclamation, suspend the operation of Subsection (1) and may, in similar manner, restore its operation”.
Why is the President given the power to aprobate and reprobate with an Act of Parliament?
HON. ZIYAMBI: I propose that we expunge Section 4.
Amendment to Clause 21, put and agreed to.
Clause 21, as amended, put and agreed to.
On Clause 22:
HON. BITI: Hon. Members of Parliament and Councillors have a duty and obligation to have report back meetings to their constituents. Some Members of Parliament have what are called constituency surgeries where you gather members of your constituency or they come to you and ask about anything and everything. Surely, those meetings must be exempted from application of Section 24 of the Public Order and Security Act. You cannot be expected to give notification to the police that you want to hold a feedback meeting in your constituency. We propose that a genuine bona fide feedback meeting or Member of Parliament or councillor’s surgery held by a councillor or Member of Parliament in his constituency should be exempted from the application of the notification provision. I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): My understanding is that Hon. Biti is concurring with what is on Clause 22 but he wants us to deal with the Schedule, so let us adopt this and we go to the Schedule.
HON. PHULU: I am sure you will agree with me that changing the Schedule in your office is an error – [HON. ZIYAMBI: Read it slowly until the end, hear what it says and then you will tell me] – “Subject to subsection 2, the Minister may by notice in a Statutory Instrument add or amend….” – it is okay, thank you.
Clauses 22 and 23 put and agreed to.
Insertion of New Clause 24;
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I move the amendment standing in my name that after Clause 23 on page 18 of the Bill, insert the following clause –
“23 Repeal of Cap.11:17
The Public Order and Security Act [Chapter11:17] is repealed.”.
Amendment to New Clause 24 put and agreed to.
New Clause 24, as amended, put and agreed to.
On Schedule Section 6 (5) and (22):
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): On the Schedule Hon. Chair, it should be Section 9, so we remove Sections 6, 5 and 22.
Amendment to new Clause 23 put and agreed to.
New Clause after Clause 23, as amended, put and agreed to.
On Schedule, Sections 6, 5 and 22:
THE MINISTER OF JUSTICE, LEGAL AN PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Thank you Hon. Chair. I propose amendments to say; Schedule, section 9 and then classes of public gatherings to which Section 9 does not apply. Thank you.
Amendment to Schedule, Section 9 put and agreed to.
Schedule, Section 9, as amended, put and agreed to.
On Schedule, Sections 6, 5 and 22:
HON. BITI: Our submission Madam Chair Ma’am, is that where a bonafide Member of Parliament wants to hold a bonafide report back meeting in his/her constituency and a bonafide councillor wants to hold a bonafide report back meeting or constituency surgery in his or her constituency, surely he must not be obliged to comply with the provisions of Section 9 of the Bill. It also includes chiefs. Surely, Hon. Minister, you must concede that as an esteemed Member of this august House. I thank you Madam Speaker Ma’am.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFARIS (HON. ZIYAMBI): Thank you Hon. Chair. In this proposed Bill, it gives provision that you can give in advance a notice that, ‘I am an Hon. Member, I hold consultative meetings with my constituents on these dates.’ It gives provisions for that. A feedback meeting by its nature, by a Member of Parliament is a political meeting. If you leave it open, that will be the route that will be used to have unsanctioned meetings under the guise that it was a feedback meeting. I respectfully submit that the provisions of this Bill that allow an Hon. Member to give a schedule of feedback meeting and the regulator notes them, is sufficient to cure that. The moment we regulate and say an Hon. Member does not need a notice, it is very dangerous because if any violence occurs, they have a defence that – [AN HON. MEMBER: Inaudible interjection.] – You will not be liable because you are covered. The moment we put it on the exclusion list, you are cushioned if anything happens. You are more or less in the same category of somebody who has given notice and done the due process. To do that would be to open it up to some individuals who are not well-meaning. I am not saying you are not well-meaning but you need to ensure that, that is insulated.
Hon. Chair, if I want to have my political meetings in my province, I inform the police that I am having a provincial coordinating meeting on Friday because we may beat each other in that meeting and we need to inform them so that we are covered. So, I believe and respectfully request my colleagues that for chiefs, I admit we can include the chiefs meeting on the exclusion list but for political parties, it will be very dangerous to do that. I so submit Hon. Chair.
HON. TOFFA: Thank you Madam Chair. What I want to find out as a representative of the people; you have situations where members of your constituency call upon you because there is something urgent they want to discuss with you. Where do you get time to give notice? As a representative, I am the representative and they should have access to me at any given time. What opportunity do I get to notify the police in a situation like that?
HON. ZIYAMBI: Thank you Hon. Chair. If you go through the Bill, it is not very restrictive to say that if you have a short notice, you cannot be given. For instance, if I want to have a meeting tomorrow, the regulator can be allowed to say, you want to have a meeting there but it is not very safe to have it there but you can have it even at short notice. So, we should not labour ourselves on some issues that are very administrative but let us look at the mischief that we want to ensure that we take care of within a broader picture, but what she is alluding to, the Bill, if you go through it, it takes care of those situations. I submit.
HON. CHINYANGANYA: Thank you Madam Chair. That provision is retrogressive. Councillors and Members of Parliament are expected by their constituencies to regularly interact with them. So for the Bill to ask them to notify the police is archaic. It does not make sense. Any reasonable person will know that it is unreasonable. It is very retrogressive. Even POSA does not have that provision. Why include it now? We know our duties, we know our roles. There is no way that we can disguise political meetings, that you can confuse political meetings with development meetings. With all due respect, you need to respect elected officials. Thank you.
HON. ZIYAMBI: Thank you Hon. Chair. To the contrary, this provision was already there, so I do not know where he is saying it was not there. It was there, that is why I alluded to the fact that even now, if I want to have a meeting, political meetings by their very nature, it is not every time that you agree even if you are from the same party. So, a constituency feedback meeting is a political meeting – [HON. MEMBERS: It is not, it is a developmental meeting.] and it is bound to raise emotions if the representative of the people and those that are being represented are not in agreement.
It is different from a church gathering where a pastor will be preaching and ordinarily the congregation will be listening, but political meetings by their very nature, that is why I said the Bill has a provision that allows you to give a schedule of your meetings for the purpose of the convener to know that you have these meetings and that way it is liberal, but for us to sit here and legislate and say for feedback meetings you should not go to the regulator, it will be very irresponsible because people may beat each other or even kill each other at those feedback meetings.
The Hon. MP may be well meaning but some thugs may infiltrate that meeting and cause violence.
HON. SIKHALA: Like zvakaitwa Sacco zviya?
HON. ZIYAMBI: Precisely. It could have ended up being very emotional and riotous. So if you inform the regulator, it means that they will be aware and the convener of that meeting will be insulated against that.
HON. MATEWU: Thank you Madam Speaker. The Minister is saying that you must give a schedule of your meetings, but the truth is that as an elected official, your constituency expects you to be readily available and things can become spontaneous. For example there was a cyclone and it would be incumbent on the representative to quickly call up people. You have no time to notify the police. Things happen spontaneously when you are an elected official.
So having a schedule of meetings when things can just happen and you need to gather people, I do not think that is reasonable. It goes against the tenets and the principles of democracy. Elected officials must at any time, at any given point, without any restriction, be able to represent the people who elected them into office. You cannot then say I cannot meet you because I have submitted this to the police. It is not good enough. That is why we have elections in this country, to ensure that you are there even at 3.00 a.m. in the morning. You must be able to meet the people. If you get a call at 1.00 a.m. in the morning ,you must be able to meet the people because you are an elected representative. Thank you.
HON. ZIYAMBI: I will just respond to two issues. If there is a cyclone, it is a disaster. That is not a scheduled constituency meeting. The Bill allows meetings of 15 or less people. So you can even have those small meetings, but for bigger gatherings, we have to be cautious and also have regard to the need for maintenance of peace.
You are allowed. So I cannot continue labouring on those unless if there are other issues that are different from what I have explained. There is need to do that, to inform. Small gatherings of 15 people or less, yes, you do not need to inform the police.
An earthquake or a cyclone is not what we are envisaging here. So I submit that we leave the schedule as it is and in any event we can always review this. It is allowed as we move forward. I thank you.
HON. HAMAUSWA: I had an issue which relates to what the Minister was trying to explain. During the weekend, I had an all stakeholders meeting, but that was organised by a church and then when we invited the police to come to the stakeholder’s meeting which was actually being held at a church they said…
THE TEMPORARY CHAIRPERSON: Hon. Member, this is now outside what we are discussing here.
HON. HAMAUSWA: No, it is the same. When we are doing feedback meetings – I am giving an example of where we are being constrained in the execution of our duties and this example I think will help the Minister in actually allowing us through amending a provision in the Bill.
So, when we were having that meeting at a church they said you did not seek clearance and we had to go through the process of seeking clearance, but it is a feedback meeting and I am a Member of Parliament presenting a community. I want to meet with the people and we have time constraints and then I have to go to Southerton to seek clearance and it takes a lot of resources to do that – I represent Warren Park. So, those are some of the issues we need to consider.
HON. ZIYAMBI: I only respond to something that I have not responded to. If you hire a church hall to do a feedback meeting, you are required to notify the police. If you hire a church hall to hold a feedback meeting, you are required to notify the regulator. If you go to church and they invite you to address them, you are not required to notify the regulator. So, let us separate the two.
THE TEMPORARY CHAIRPERSON: For the benefit of clearing the air, I think we would like to put it to the House that there is a perception that Clause 11 was deferred.
HON. ZIYAMBI: No, it was not deferred, it was adopted.
THE TEMPORARY CHAIRPERSON: There was a perception that Clause 11 was deferred.
HON. BITI: We diplomatically, diplomatically.
THE TEMPORARY CHAIRPERSON: So I think let us properly adopt it.
Amendment to Clause 11, put and agreed to.
Clause 11 as amended, put and agreed to.
HON. SIKHALA: Madam Chair, I think after the passage of this Bill into law, the Minister must be able to make sure that each and every Hon. Member here understands the import of the provisions in it. Hon. Minister, it is not correct that if I am invited to a church or if I have booked a church place for me to hold a public meeting, I must notify the regulating authority. If you would check on the interpretation section of this Bill, it says a public meeting means any meeting of more than 15 persons in a public place for a meeting with the public or any section of the public permitted to attend. So a church is not at a public place or at a public meeting. What do you mean when you say that if I am invited to the church I must inform the regulating authority, is that a public place?
HON. ZIYAMBI: Let me explain for his edification. On the public gatherings that are excluded from informing the police, religious gatherings are excluded. I am saying, if you go to a religious gathering as Hon. Sikhala and you sit in that religious gathering and they invite you as an Hon. Member who has visited that gathering to say one or two words, you do not require police clearance but if you hire a church hall for the purposes of a public meeting of a political nature, you require a police clearance.
HON. BITI: Madam Chair and Hon. Minister, the Member of Parliament and the councillor perform civic duties that cut across the political divide. For instance, I am a member of Harare East; I go to rate payers meeting at places like Greendale Sports Club. I cannot utter a slogan, the white people in that hall will walk away. I cannot utter a slogan at Greendale Sport Club. We discuss rates, we discuss refuse collection and so forth. For a meeting like that, you cannot surely expect me to give notification in terms of Section 9. On Saturday, I have a meeting to discuss the Marriage Bill and Clause 40. I cannot utter a slogan at that political meeting but of course, when I go to Mukanda bhutsu in Harare East, I will have to utter a slogan. That is completely different. Where the councillor, where the Member of Parliament is performing a civic duty, surely you cannot expect the same to be netted by Clause 9 of the Constitution of Zimbabwe. I know that in all our constituencies, there are gatherings like that which you cannot speak and put on the political jacket that you come from. Thank you Madam Chair.
HON. ZIYAMBI: I agree that if you are going to a ratepayers’ meeting, it is not a political gathering but if you are going to a meeting that you have called as an Hon. MP, it is a political meeting. I thank you.
HON. C. MOYO: Madam Chair, what about in a meeting where there are stakeholders that are coming, church leaders, residents association, just civic people that I am going to meet.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Madam Chair, I have said, if me as an MP calls a stakeholders’ meeting, it is a political meeting but if I am invited by the church leaders, it is not a political meeting. I am not even the convener.
HON. C. MOYO: What about if my community development committee is more than 15?
HON. ZIYAMBI: Madam Chair, I have already answered.
HON. SIKHALA: Madam Chair, I still have issues with the provisions in the schedule. Hon. Minister, you are saying in the Schedule (a) held exclusively for bona fide religious, educational, recreational sports, rechargeable purposes or any two or more such purposes; why I have an issue with this provision in the schedule is your classification by using the term bona fide. How do you distinguish or define a bona fide or a mala fide meeting? A church, a religious organisation is a religion. A church is a church, an educational, a school is a school, a recreational and sporting and charitable purpose is just a recreational purpose. Why do you define them as bona fide or mala fide? The reason why you are putting the words bona fide is you are attempting to go and subjugate and abuse other organisations or church organisations where the leaders of those churches are not in agreement or in sync with the Government. A religious organisation is a religious organisation, why do you call a Zion Christian Church bona fide or not. Here I suggest that we leave it as public gatherings held exclusively for religion, educational recreational and then remove word bona fide. The word bona fide is trying to qualify a church, an educational institution and other institutions is trying to qualify a church, an educational institution and other institutions. It is insulting. Why I am trying to persuade you Hon. Minister to look at these provisions is because there is what is called, as you understand at law – the passage of a void law. If you pass a very bad law it is a void law. In 2003, in this House, we spent the entire night just like we did today when we were debating POSA because of the ultra vires provisions it had in that law. I want to ask you a question. When Hon Chinamasa was the Minister of Justice, he was frothing seated where you are defending the Public Order and Security Act but I want to ask you today when we are repealing it; tell me one person since 2003 who was convicted after having been arrested for violating POSA on the basis that the judicial officials would see that this law is void? Do not pass a void law in this House where we will be frothing defending it but at the end of the day we will become just a circus of a law. Tell me one person who was convicted for violating POSA? I will bet my last dollar, I am a practitioner of law and if you get only one person who will be convicted because we passed this shit of paper in this House as a law, I will come and congratulate you Hon. Minister. These are my final submissions.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I cannot dignify the language that he used. I believe religious organisations can be used for terrorist purposes. So, for him to say I must remove bona fide, I cannot. We have muslim brotherhood, we have alkaeda and al-shabab. These are religious organisations and I am not persuaded, I submit.
Amendment to Schedule, Sections 65 and 22 put and agreed to.
Schedule, Sections 65 and 22, as amended, put and agreed to.
Bill reported with amendments.
Bill referred to the Parliamentary Legal Committee
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): I want to thank the Hon. Members and everyone. I think this was highly informative, exciting, educative and I think we have come up with certain pieces of clauses that were also problematic but we managed to bring our brains together and improve them. I believe that what we have done tonight and finished this morning is a wonderful job. I want to thank all the Hon. Members that have endured the whole night until now for a job well done. I think we have done justice to the Bill and I want to thank all the Hon. Members even though at times we appeared to be differing for coming together to deal with specific clauses and improving them.
HON. BITI: Hon. Chair, can we also thank the esteemed Minister of Justice, Legal and Parliamentary Affairs and Hon Dias and his team for granting us indulgence and also for holding fort on behalf of the State. This dialogue must be a national dialogue to serve our country. So we want to thank you Minister and everyone else on the right and left side. Zikomo kwambili.
HON. MUTSEYAMI: On a point of order Madam Chair. This is a minute past 4 o’clock am. We have Hon. Members here mostly for the Harare and Chitungwiza and most of these Hon. Members do not have vehicles. At this hour, there are no kombis. So I appeal for accommodation for Hon. Members to be sorted so that they can check into hotels just for them to rest.
THE TEMPORARY CHAIPERSON: Noted.
Bill referred to the Parliamentary Legal Committee.
ANNOUNCEMENT BY THE TEMPORARY SPEAKER
NON-ADVERSE REPORT RECEIVED FROM THE PARLIAMENTARY LEGAL COMMITTEE
THE TEMPORARY SPEAKER: I have to inform the House that I have received a Non-Adverse Report from the Parliamentary Legal Committee on the Maintenance of Peace and Order Bill [H. B. 3, 2019].
Consideration Stage: With leave, forthwith.
MAINTENANCE OF PEACE AND ORDER BILL [H. B. 3, 2019].
Amendments to Clauses 4, 5, 7, 10, 12, 13, 14, 15, 16, 19, 21, New Clause 24 and the Schedule.
Bill, as amended, adopted.
Third Reading: With leave, forthwith.
MAINTENANCE OF PEACE AND ORDER BILL [H. B. 3, 2019].
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI): Mr. Speaker Sir, I now move that the Bill be read the third time.
Motion put and agreed to.
Bill read the third time.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the House adjourned at Ten Minutes past Four o’clock a. m. until Tuesday, 27thAugust, 2019.