Zimbabwe ban on demonstrations is unconstitutional:Magaisa

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Legal expert Alex Magaisa says the recent police ban on demonstrations is unconstitutional because Zimbabwe’s constitution specifically states that statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

Police yesterday issued a ban on demonstrations until 16 September through a statutory instrument.

Eighteen opposition parties going under the umbrella of the National Electoral Reform Agenda planned to stage a peaceful demonstration today but the leading party, the Movement for Democratic Change, announced through a press statement that the demonstration had been postponed until 16 September.

It did not give any reasons.

Writing in his personal blog, Magaisa said the primary element to note was the nature the language used in the constitution. Use of the words “must not” clearly showed that this was a mandatory prohibition.

“A perusal of SI 101A shows that it clearly infringes upon a number of fundamental rights and freedoms. It bans the right to demonstrate peacefully. By so doing it also bans freedoms of expression and assembly,” he wrote.

“It infringes the right to human dignity and a number of political rights. On that count alone, SI 101A fails the constitutional test.”

Below is Magaisa’s argument in full:

Why SI 101A banning protests in central Harare is unconstitutional

By Alex Magaisa

The Zimbabwe Republic Police has issued an order banning public demonstrations in central Harare. This order was issued by the Chief Superintendent Newbert Saunyama, in his capacity as the Officer Commanding Harare Central Police District. The order, Statutory Instrument 101A of 2016 (hereafter SI 101A), was issued in terms of the Public Order and Security Act (POSA), a notoriously repressive piece of legislation.

POSA is a replica of the Law and Order (Maintenance) Act (LAMA), a key pillar of the repressive machinery of the colonial regime. The irony is that the current users of POSA were victims of its colonial replica, LOMA. So the latest ban on protests in Harare by the regime led by Robert Mugabe would not have been out of place in Ian Smith’s Salisbury.

The new ban comes in the wake of a number of political protests against government, which have taken place in Harare and other urban areas in recent months. #ThisFlag, #Tajamuka, #ThisGown and other citizens’ movements have been leading the demonstrations, alongside the traditional political parties which are also campaigning for electoral reforms. There have been instances of violence, mostly instigated by the police service which has responded overzealously and violently to opposition and citizens protests. They have been selective, however, treating ZANU PF’s pro-government demonstrations leniently.

The latest ban is supposed to run for 2 weeks, from 2 September 2016 to 16 September 2016 and covers Harare Central Police District. The provision in POSA under which the order has been issued allows such bans to run only for a specified period of no more than one month. Nevertheless, there is no guarantee that the ban will not be renewed upon the expiry of the current 2 week period or later periods. To that extent, it is probable that the ban may become a permanent rather than a temporary feature in Harare. This is reminiscent of 1980s Zimbabwe when the State of Emergency was renewed every 6 months

The primary element to note is the nature of the instrument used to issue this ban. It is an order made by a police officer under a statutory instrument, in effect a decree. It is therefore subsidiary legislation, which is dealt with under section 134 of the Constitution. To determine whether or not it is valid, the first test is whether it complies with constitutional requirements for statutory instruments set out under section 134.

While section 134 of the Constitution recognises that Parliament may delegate its law-making powers, it also makes it clear in paragraph (b.) that “statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights”. The language used – “must not” shows that this is a mandatory prohibition. A perusal of SI 101A shows that it clearly infringes upon a number of fundamental rights and freedoms. It bans the right to demonstrate peacefully. By so doing it also bans freedoms of expression and assembly. It infringes the right to human dignity and a number of political rights. On that count alone, SI 101A fails the constitutional test. This should be the end of the enquiry but there is more to be said against SI 101A.

Section 134(f) also requires all statutory instruments to be “laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny”. This provision was designed to ensure that statutory instruments go through parliamentary scrutiny. The Parliamentary Legal Committee is an important institutional safeguard designed to protect the Constitution. The PLC scrutinises all bills and in this case all SIs to ensure that they are constitutional. If SI 101A is placed before the PLC, it would be incompetence or a dereliction of duty on its part if it failed to find that it breaches section 134 (b.) of the Constitution.

As stated, SI 101A breaches section 134(b.) of the Constitution because it contravenes a number of fundamental rights and freedoms enshrined under the Declaration of Rights. It is important to set out these rights and the breaches.

First, section 59 guarantees the right to demonstrate and present petitions peacefully. SI 101A clearly violates this right as it bans all demonstrations and processions, including peaceful ones, within the area of central Harare. Each demonstration must be judged on its own merits.

Second, section 58 protects the right to freedom of assembly and association. Marches, protests and other processions which have been banned under SI 101A stop people from assembling and associating as they wish within central Harare, itself a clear violation of these rights. Workers who wish to exercise their labour right provided for under section5 are also caught in this ban.

Third, section 61 guarantees the freedom of expression, also commonly referred to as the right to free speech. There are qualifications to this right, such as the probation against hate speech or incitement to violence, but overall it is an important right which covers people’s rights to demonstrate as they are also a form of expression.

Further, section 66(2) protects the freedom of movement within Zimbabwe. Every Zimbabwean citizen and everyone else who is legally in Zimbabwe has “the right to move freely within Zimbabwe”. Free movement includes movement in any manner that a person chooses – whether individually or as part of a group. Banning marches and demonstrations in central Harare constitutes a restriction on the right to free movement.

In addition, section 67(2) makes extensive provision for the protection of political rights, which include the right to:

–    Form, to join and to participate in the activities of a political party or organisation of their choice;

–    Campaign freely and peacefully for a political party or cause;

–    Participate in peaceful political activity; and

–    To participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.

Finally, there is a strong case to be made that SI 101A is a serious infringement upon the right to human dignity. The right to human dignity, provided for in section 51 of the Constitution is a broad and important right which is recognised in international human rights instruments, by courts and human rights scholars as a foundation upon which all other rights are built and enjoyed. It’s meaning is broad and flexible, ensuring broader protections and interpretations of other individual rights. Undermining one’s freedom to demonstrate, express themselves, associate with others and to participate in political activity can be argued to be serious violations of one’s dignity as a human being. In fact, in this context, this may be regarded as the most important of all rights that are affected by SI 101A in that section 86(3) of the Constitution lists it as one of the absolute rights from which no law can derogate. In other words, to the extent that SI 101A violates the right to human dignity, it is completely unconstitutional and it cannot even be saved by section 86(2) of the Constitution, which makes some allowances for laws that limit fundamental rights. These are clear constitutional rights which have effectively been banned within the area of central Harare covered by SI 101A.

The common standard of measuring the constitutionality of exceptions or derogations from a constitutional right is provided for in section 86(2) of the Constitution. It provides that the rights provided for in the Declaration of Rights “may be limited but only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors …”

This rule is the gold-standard of judging whether or not the limitation is constitutional. A number of factors may be considered in addition, such as whether there are other less restrictive ways of limiting rights, the purpose of the limitation and whether it necessary in the interests of public order, safety, defence, etc. A court has to consider all the factors, balancing the affected rights and the purpose of the limitation, in this case the purpose of SI 101A. The police should not use the excuse of their own limitations to contravene people’s rights.

In this case, SI 101A only applies to a section of Harare and does not apply generally to other parts of the country. There has to be justification as to why central Harare alone has been selected. The ban affects only a section of the population and no sufficient justification has been given for this selectivity of the law.

SI 101A has to be fair, reasonable, necessary and justifiable in a democratic society based on openness, freedom, etc. However, SI 101A is indiscriminate and prohibits even peaceful demonstrations. A blanket ban on all future demonstrations is patently unreasonable and unjustifiable in a democratic society. Each demonstration must be dealt with on its own merits and if demonstrators are aggrieved by a decision of the police to stop a demonstration, they must be able to go to court to place their case before an impartial judge. This is how it has been all along.

However, clearly, this ban in intended to pre-empt judicial scrutiny of police bans on individual demonstrations. Courts have generally ruled in favour of demonstrations, much to the disappointment of government, hence this move to establish a blanket ban on demonstrations. To that extent, SI 101A violates the right to a fair hearing, protected under section 69 of the Constitution. I would go further and invoke section 68, which protects the right to fair administrative conduct, but the points already advanced in his piece are sufficient to demonstrate the unconstitutionality of SI 101A.

I must add, however, an important point regarding the moral hazard by SI 101A in so far as the protection of the Constitution is concerned. There can be no doubt that SI 101A is a serious and fundamental derogation on all the rights articulated in this article. The fact that SI 101A is subsidiary legislation effectively amounts to amending the Declaration of Rights by stealth. The Constitution has robust safeguards against reckless, ill-considered and malicious amendments. One of that any provision of the Declaration of Rights can only be amended by two thirds majority of Parliament. The other is that any such amendment must be approved at a referendum. The third is that any amendment of the Declaration of Rights must be an improvement and not a reduction of rights that are already provided for. The fourth is that primary legislation can only be made by Parliament, a power that cannot be delegated.

However, to the extent that the effect of S1 101A is to reduce fundamental rights, this is an amendment of the Constitution by stealth. It is worse that it is being done by a police officer. If government wants to amend the Declaration of Rights, it must follow the right channels. Allowing SI 101A to stand presents a serious moral hazard as the government will no longer bother with the formal and deliberately cumbersome route of amending the Constitution. It will, instead, escalate the use of statutory instruments, which presents a mortal danger to the Constitution, constitutionalism and the rule of law.

There is no doubt in my mind that SI 101A is unconstitutional. It is the most serious and reckless assault upon Zimbabwe’s three-year old Constitution. If anything, the Superintended has declared a mini-state of emergency in central Harare. He is invoking powers that he does not have. If President Mugabe wants to declare a state of emergency, then he must do so using the constitutional provisions, not delegate such authority to a police officer. As I have stated, the easiest ground to dismiss SI 101A is that it violates section 134(b.) of the Constitution, which prohibits statutory instruments from contravening fundamental rights. The second is that it violates the right to human dignity, which is an inviolable right. The third is that it violates a host of other rights, which while limitations may be permitted, SI 101A fails to pass the constitutional test under section 86(2) of the Constitution. Finally, if the courts allow it to stand, they would have opened the floodgates of similar subsidiary legislation, which the government will use to undermine the Declaration of Rights and circumvent the tough amendment provisions of the Constitution. That would be a serious hazard to Zimbabwe’s already struggling democracy.

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