By Daniel Chigundu
Maintenance of Peace and Order (MOPO) Bill which is set to replace the unpopular Public Order and Security Act (POSA) is set for public hearings starting on the 3rd of June.
MOPO Bill has received wide condemnation from various legal watchdogs and political commentators who are of the view that it is POSA but with another name.
With the Parliamentary Portfolio Committee on Defence, Home Affairs and Security Services together with the Thematic Committee on Peace and Security holding public hearings across the country, citizens have the opportunity to air their views.
However, the challenge is that not many people are aware of what the Bill says as it is written in difficult legal language and was not simplified for the ordinary man in the streets.
The other thing is that the public hearings are being conducted in about 18 venues which mean most people who want to participate will have to travel long distances to the places at a time when transport cost has risen sharply owing to increased fuel prices.
History might also come to play as most people who have participated in previous public hearings have complained that their views are eventually ignored and this might result in them snubbing the meetings.
The MOPO Bill favours Zanu PF more than the opposition and we are likely to see tension-filled public meetings which might turn violent like what happened with the Local Government Amendment Bill.
At the end of the day even though people will air views concerning the Bill it will still boil down to what Zanu PF want as they have the final say in Parliament where they enjoy the majority.
Even if there were some well-meaning legislators from the Zanu PF side still there is nothing much we can expect from them owing to the Whipping System where they have to support the party position.
Even if we are going to voting in Parliament it is unlikely that they will use the secret ballot as there is no much trust among Zanu PF legislators.
Below are views from legal and Parliament watchdog Veritas Zimbabwe with regards to the Bill.
Is the Bill Constitutional?
In the light of those principles, some clauses of the Bill may be unconstitutional while some most certainly are:
Clause 4 (Temporary prohibition of weapons)
This clause empowers a regulating authority [i.e. a senior police officer] to prohibit for up to three months the carrying in public of items capable of being used as weapons if the regulating authority considers they are likely to occasion public disorder or a breach of the peace. The items include catapults, axes, knives and traditional weapons. Anyone found carrying such an item in breach of a prohibition will commit a criminal offence and be liable imprisonment for up to six months. Persons aggrieved by a prohibition under the clause will be able to appeal to the Minister of Home Affairs and Cultural Heritage, but not to a court.
There are two objections to this clause:
People who carry prohibited items in public will be guilty of a criminal offence no matter what their reason for carrying them may be. A person who buys a kitchen knife, for example, and carries it home will be liable under the clause. There is no provision for exempting people who have a reasonable excuse for carrying prohibited items.
Aggrieved persons cannot appeal to a court against a prohibition order under the clause. Hence they will be denied their right of access to the courts for the resolution of disputes, a right guaranteed by section 69(3) of the Constitution.
These two objections, taken together, suggest the clause, as it stands and without allowing for the necessary exceptions, is neither reasonable nor necessary in a democratic society based on openness and freedom. The clause is probably unconstitutional.
Clause 7 (Notice of gatherings)
This clause requires conveners of public gatherings (processions, demonstrations and public meetings) to give the local regulating authority advance notice of their gatherings ‒ seven days in the case of processions or demonstrations, five days in the case of public meetings. Failure to give notice will be a criminal offence rendering the defaulting convener liable to imprisonment for up to one year.
In a carefully reasoned judgment, last November the South African Constitutional Court declared a similar provision in that country’s Regulation of Gatherings Act to be unconstitutional on the ground that criminalising failure to give notice of a meeting unduly limited the right of freedom of assembly and demonstration. (The judgment is available on the Veritas website [link]). The limitation, the court pointed out, penalised not just conveners but also participants because if conveners are deterred from organising a gathering then the gathering will not normally take place.
The South African Regulation of Gatherings Act seems to have been the model on which Part IV of POSA and Part II of the Bill are based, and the provisions of the South African Constitution on freedom of association and demonstration are very similar to those in our Constitution. Hence the decision of the South African Constitutional Court is highly persuasive.
One can say with some confidence therefore that clause 7 of the Bill is unconstitutional in that it makes failure to give notice of a gathering a criminal offence.
Clauses 5 to 8 (Prohibition of spontaneous gatherings)
More generally, clauses 5 to 8 of the Bill are unconstitutional because they require advance notice to be given of all gatherings. There is no room for spontaneity: if two or more people demonstrate in a street or public place, or conduct a procession, or if more than 15 people hold a meeting in a public place, they will have to give the Police at least five days’ notice in the case of a meeting or seven days’ notice in the case of a demonstration or procession. There are no exceptions allowing demonstrations to be held in immediate response to matters of public concern. This is a severe limitation on freedom of assembly and demonstration, so severe that the clauses are unconstitutional on that ground alone.
It may be noted that the South African Regulation of Gatherings Act makes proper allowance for spontaneity. In that Act for smaller assemblies no notice need be given: the requirement to give notice applies only to gatherings of more than 15 people, and it is a defence to a charge of failing to give notice of larger gatherings that people assembled spontaneously. Our Bill, like POSA, contains no such provision.
Clause 12 (Civil liability of conveners)
Clause 12 of the Bill states that if conveners fail to give the Police notice of their gatherings or fail to comply with directives, notices or orders given by a regulating authority, they will be civilly liable for any damage, injury or death “occasioned by any public disorder or breach of the peace caused by or arising out of or occurring at the gathering”. The clause places on conveners the onus of proving that they gave proper notice and complied with all directives, etc.
This clause will obviously have a “chilling” effect on freedom to assemble and demonstrate because conveners’ liability will be absolute. If a convener cannot prove that he or she gave notice under the Bill, he or she will be liable for all damage whether it was caused by participants in the gathering or by counter-demonstrators or by anyone else. It won’t matter if the convener tried to stop the damage or if it was not reasonably foreseeable; the convener will be liable for it just the same.
The liability is too broad and the onus of proof laid on conveners is too great: so broad and great in fact that the clause imposes an unreasonable limit on freedom of association, far beyond anything necessary in a democratic society. Hence the clause is unconstitutional.
Again it is instructive to compare the clause with the South African Regulation of Gatherings Act. Section 11 of that Act imposes similar liability on conveners but allows them to escape it if they can show they did not permit or connive at the conduct which caused the damage and that they took reasonable steps to prevent it.
Clause 14 (Persons to carry IDs)
This clause will require everyone who is 18 years old or older to carry an identity document when in public, and will give police officers power to demand that anyone aged 16 or older should produce an identity document. [Why the clause specifies two different ages is not clear] It will not be a criminal offence not to carry an ID but if a person does not produce one on request from a police officer, he or she will have to produce it at a police station within seven days, and failure to do so will be a criminal offence.
In 1997 our Supreme Court held that a statutory provision which allowed police officers to stop people at random and demand their identity documents was unconstitutional in that it inhibited freedom of movement. Clause 14 contains just such a provision, and to that extent it too is unconstitutional.
All the provisions we have mentioned above are currently contained in POSA. The Bill will not change the law to any substantial extent, and no serious attempt has been made to bring it into line with the Constitution. If the Bill is enacted without amendments it will continue, like POSA, to stifle freedom of association, freedom to demonstrate and, more broadly, freedom of expression.