BY VENERANDA LANGA
President Emmerson Mnangagwa’s proposed signature law to replace the controversial Public Order and Security Act (Posa) is littered with clauses that could potentially render it unconstitutional, legal experts have warned.
Posa was routinely used by former president Robert Mugabe to clamp down on dissent and to harass opponents of the ruling Zanu PF.
Mnangagwa’s government, which came into power on the back of a military coup in November 2017, has also used the law to target the opposition by restricting meetings and demonstrations.
Several Posa clauses were declared unconstitutional by the courts and it is one of the pieces of legislation targeted for repeal by the new administration to ostensibly open up the democratic space.
However, the Maintenance of Peace and Order Bill (Mopa), the proposed law that would repeal Posa, has been described as a rehash of the draconian law.
Veritas, a local think-tank focusing on legal and parliamentary issues, has raised a red flag, saying the Bill contains clauses that would stifle freedom of association, freedom of assembly and freedom of expression.
It cited clause 4 of the Bill, which prohibits for up to three months the carrying of items capable of being used as weapons if the regulatory authority considers that they are likely to cause public disorder or breach of peace.
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The items include catapults, axes, knives and traditional weapons.
Veritas said there should be allowance for exceptions, adding that the clause was neither reasonable nor necessary in a democratic society based on openness and freedom.
“This clause is probably unconstitutional,” Veritas said.
The lawyers said one of the objections to the clause was that 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,” Veritas added.
“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, which is a right guaranteed by section 69 (3) of the constitution.”
Another problematic provision is clause 7, which criminalises failure to give notice for public meeting, Veritas said.
“Failure to give notice will be a criminal offence rendering the defaulting convenor liable to imprisonment for up to one year,” the lawyers said.
“In a carefully reasoned judgement last November, the South African Constitutional Court declared a similar provision in that country’s Regulation of Gatherings Act to be unconstitutional on the grounds that criminalising failure to give notice of a meeting unduly limited the right of freedom of assembly and demonstration.
“The limitation, the court pointed out, penalised not just conveners, but also participants, hence the decision of the South African Constitutional Court is highly persuasive.”
According to Veritas, clause 12 will seriously infringe on freedom of assembly as it 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”.
“This clause will obviously have a ‘chilling’ effect on freedom to assemble and demonstrate, because conveners’ liability will be absolute,” reads comprehensive the analysis of Mopa.
“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.”
Clause 14 of the Bill also requires everyone who is 18 years old or older to carry an identity document all the time and again the lawyers said the provision will be a violation of the constitution.
“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,” Veritas added. “Clause 14 contains just such a provision, and to that extent it too is unconstitutional.”
Last year Constitutional Court judge Justice Rita Makarau ruled that section 27 of Posa, which forced citizens to seek police clearance to hold demonstrations, was open to abuse.
In her ruling, Makarau said she found it disturbing that the section had no timeframe or limitation as to the number of times the regulating authority could invoke the powers granted to him or her under the section.
“Thus, a despotic regulating authority could lawfully invoke these powers without end. This could be achieved by publishing notices prohibiting demonstrations back-to-back as long as each time the period of the ban is for one month or less,” reads part of her judgement.
“It, thus, has the potential of negating or nullifying the rights not only completely, but perpetually.”
She was making a ruling on an application lodged by groups of civil society organisations and political parties in May 2017 after they were barred from protesting against Mugabe’s government.
The 94-year-old politician was toppled in a coup six months later where Zimbabwe also witnessed one of its biggest protests in history.
