By Dr Alex T. Magaisa
The Zimbabwe Republic Police (ZRP) has issued a new decree banning demonstrations in central Harare. Although odd, the move is hardly surprising. This is a ZANU PF government and its reaction to setbacks is predictable: they often respond with the most unreasonable moves, driven by arrogance and stubbornness. In order to understand why this is yet another misguided and unreasonable move by the ZANU PF regime, a brief account of events of the past two weeks is useful.
On 1 September 2016, the ZRP issued Statutory Instrument 101A of 2016. Its primary purpose was to ban demonstrations in central Harare for a period of two weeks, from 2 to 16 September 2016.
This ban was challenged at the High Court. On Wednesday 7 September 2016, Justice Priscilla Chigumba issued an order declaring SI 101A/2016 invalid because of its inconsistency with the Constitution. However, the order of invalidity did not come into operation because the judge suspended it for a period of 7 days allowing a “competent authority” to correct the defects in SI 101A/2016.
It is within this context that the ZRP have now issued a new order banning demonstrations in central Harare. This time however, they have extended the ban from 2 to 4 weeks. The new ban will run until 15 October.
Even if this is to be regarded as the state’s attempt to correct the defect using the grace period given by the High Court, it is impossible to identify the corrective measure when they have used exactly the same instrument that failed the last time. If anything, the new order is worse because it is for a longer duration. On the basis of current information, the new ban suffers from the same defects that affected the validity of SI 101A/2016.
As previously argued in these pages, the fundamental and fatal defect of SI 101A/2016 was that it contravened section 134(b) of the Constitution. Section 134(b) prohibits statutory instruments that limit or infringe upon fundamental rights set out in the Constitution. It states that, “statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights”. The language demonstrates that the prohibition is mandatory and it means any statutory instrument which limits or infringes upon fundamental rights in the Constitution would be invalid. The effect of SI 101A/2016 was to limit a number of rights, including the right to demonstrate, freedom of assembly and association, freedom of expression, freedom of movement and political rights, all of which are guaranteed under the Constitution. It was partly on this basis that Justice Chigumba declared that SI 101A/2016 was invalid because it was inconsistent with the constitution. In its order, the court cited sections 2 and 175(6)(a) of the Constitution but the substantive basis for this consistency was that SI 101A/2016 violated s. 134(b) and various sections of the Declaration of Rights which it violated.
The new order is also issued as subsidiary legislation. It must therefore conform to the terms of section 134(b) of the Constitution. Since it seeks to do exactly what its immediate predecessor SI 101A/2016 sought to do, the new ban carries the same fatal defects which led the judge to declare SI 101A/2016 invalid. It is impossible to see how the new order can survive where SI 101A/2016 failed. The ZRP have defied the ruling of the High Court by reproducing a declared illegality. They have also squandered the grace period they were given by the judge to take remedial measures.
When the High Court issued the order against SI 101A/2016 last week, my view was that while the suspension of the order had bought some time for the state which was keen to dilute the momentum of demonstrations, it would be impossible for it to correct the defects which were of a fatal nature. Even the provisions of POSA could not save the ban, whichever authority was used to issue it. It is odd that the same officer who issued the defective ban has issued the new ban. In all probability, the new ban will therefore suffer the same fate as its predecessor.
But why would the ZANU PF regime act in this manner? Why would it do the same thing that has already failed? Is it not an act of folly to do the same thing twice, hoping to achieve a new result?
It can’t just be incompetence, although it’s a factor. If it’s incompetence, I suspect it’s deliberate. Part of the reason is sheer arrogance, the will do as ZANU PF pleases regardless of what the courts or the Constitution say. They are ZANU PF and they do what they want – that is the clear message.
But this is also a regime that has no respect for the rule of law or for constitutionalism. A court has just declared the limits of its power and gone out of its way to give it an opportunity to make corrections, but the ZANU PF regime had basically scorned it and repeated the same failed trick. It’s a clear snub to the judiciary. This is ZANU PF essentially undermining the judiciary by disregarding advice and ruling.
It’s also a message to the opposition and citizens that the legal route they are pursuing is futile. The law was clearly pronounced by the court and if ZANU PF cared to listen they would have done things very differently, or perhaps even tried to fast-track amendments to POSA to ensure consistency with the Constitution. But no, they have chosen instead to do a repeat of an already discredited method. The message from ZANU PF is that this is a political rather than a legal matter.
Another reason is that ZANU PF knows that even if they are doing the wrong thing, the opposition and citizens will respond with legal challenges, which will only buy more time for the regime, while derailing the momentum of the demonstrations, which had gained intensity in July and August and were getting harder to contain. The underpaid police had never been so busy for a long time and now they were required to be on stand-by every day. At some point, they were bound to feel the fatigue and the futility of fighting their own countrymen and women. The ban on demonstrations has brought some respite for the police service and reduced the risk of depleted morale.
Meanwhile the intensity of demonstrations has dissipated since the ban at the beginning of September. While it is appropriate to use the legal route, it is also playing into the hands of ZANU PF. At some point however, the opposition and citizens must decide whether that route is serving their interests or their adversary’s. They may have to be more creative in their methods of challenging the ban on demonstrations, which is likely to be renewed perpetually every four weeks.
Overall, I am not shocked by what ZANU PF has done. You always expect the worst possible response. The renewal and lengthening of the ban, against the court’s judgment on the validity of the instrument was entirely predictable. ZANU PF has a simply poured the same old (and cheap) wine into a new bottle.
You can read more from Dr Magaisa on his blog at www.alexmagaisa.com