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Order and Security Bill
[This memorandum does not form part of the proposed Act but is published as part of the Bill.]
This Bill will replace the Law and Order (Maintenance) Act [Chapter 11:O7] with provisions that protect public order and security in Zimbabwe while paying regard to the fundamental freedoms of assembly, association and expression laid down in Chapter III of the Constitution.
The individual clauses of the Bill provide as follows:
This clause sets out the Bill’s short title.
This clause will define terms that are used elsewhere in the Bill.
This clause seeks to clarify the mental elements of offences committed under this Bill. Where "intention" is an element of any offence our existing law requires the prosecutor to prove that the accused had—
(a) an actual intention to commit the offence if he or she intended that result to happen and either actively strove to cause it or engaged in conduct which he or she subjectively foresaw was certain to cause that result; or
(b) a "legal" or "constructive" intention to commit the offence if he foresaw that the result might possibly happen, and was reckless as to whether or not it did.
The introduction of a test for "realisation of a risk or possibility" as an element of certain offences under this Bill (first proposed in connection with the codification of the criminal law by the 1984 report of the Chief Justice’s Advisory Committee on Law Reform) replaces and modifies the existing common law test of "legal intention". It was felt that the test for "realisation of a risk or possibility" would be easier for the courts to apply than the test for legal intention, which requires "foresight of a possibility". Practically speaking, the courts will not attribute legal intention to an accused unless they consider that the accused realised there was a real rather than a possible risk that his or her conduct was criminally liable.
This clause will define what is meant by "regulating authority" in the Bill. Regulating authorities will be senior policemen in charge of police districts. They will have powers under Part III of the Bill to control public gatherings and crowds whenever it is reasonably necessary to do so in order to preserve public safety or public order.
This clause will make provision for the preservation of constitutional government for which provision was previously made under the repealed Preservation of Constitutional Government Act [Chapter 11:01].
This clause will make the commission of an act of insurgency, banditry, sabotage or terrorism an offence. The term "act of insurgency, banditry, sabotage or terrorism" is defined in clause 2 of the Bill and covers acts committed in the course of armed insurrection against the Government. An act of insurgency, banditry, sabotage or terrorism will not be an offence under the clause unless it is committed with the purpose of unlawfully furthering a political object in Zimbabwe. Subclause (2) makes it clear that an act of insurgency, banditry, sabotage or terrorism that does not actually result in death, injury or other harm constitutes the offence of attempting to commit an act of insurgency, banditry, sabotage or terrorism. Persons guilty of an act of insurgency, banditry, sabotage or terrorism will be liable to be sentenced to life imprisonment.
Clauses 7 to 11
Clauses 7 to 10 will make it an offence to recruit or train insurgents, bandits, saboteurs or terrorists or to undergo such training, whether inside or outside Zimbabwe, or to supply them with weapons or to possess firearms or explosives for the purpose of insurgency, banditry, sabotage or terrorism. The term "insurgent, bandit, saboteur or terrorist" is defined in clause 2 as, broadly, a person who has committed or will commit or has been trained to commit an act of insurgency, banditry, sabotage or terrorism. The maximum penalty for these offences will be life imprisonment. In clauses 8 and 10 there will be provisions creating rebuttable presumptions as to accused persons’ intention or knowledge.
Under clause 11 it will be an offence knowingly to harbour or conceal an insurgent, bandit, saboteur or terrorist or to fail to report an insurgent, bandit, saboteur or terrorist within 72 hours of becoming aware of his or her presence in Zimbabwe. The maximum penalties for these offences will be a fine of $200,000 or ten years’ imprisonment or both, in the case of harbouring or concealing an insurgent, bandit, saboteur or terrorist, a fine of $50,000 or two years’ imprisonment or both for failing to report one, and a fine of $100,000 or five years’ imprisonment or both, in the case of failing to disclose such a person’s presence upon being questioned by an official.
This clause re-enacts section 40 of the Law and Order Maintenance Act (which applies only to causing disaffection among the Police Force) and extends its application to the Defence Forces.
Possession of weapons will be an offence under this clause, unless the possessor has a certificate or permit under the Firearms Act or possesses the weapons in the course of his or her duties with the Defence Forces, the Police Force, the Prison Service or in the course of employment with the State. The maximum penalty for this offence will be a fine of $200,000 or ten years’ imprisonment or both.
This clause will empower a regulating authority to prohibit for not more than three months the carrying in public or public display of certain "traditional" weapons or other specified items capable of use as weapons that the regulating authority believes is likely to occasion public disorder or a breach of the peace. The prohibition must be published before it takes effect, and may be appealed against to the Minister.
Subclause (1) of this clause will make it an offence for anyone to publish or communicate any statement which is wholly or materially false with the intention of promoting public disorder, public violence or endangering public safety, adversely affecting the defence or the economic interests of Zimbabwe or interfering with, disrupting or interrupting any essential service. Subclause (2) also renders liable for prosecution any person who publishes or communicates a statement knowing it to be wholly or materially false or not having reasonable grounds for believing it to be true, if the publication or communication of the statement results in any of these harmful consequences, whether or not he or she intended to bring them about.
This clause will re-enact (with a modification to cover abusive, indecent, obscene or deliberately false statements about or concerning the President) the offence of undermining the authority of the President presently contained in section 46 of the Law and Order (Maintenance) Act. These provisions apply also to an acting President. This measure is in addition to the protection afforded to every citizen, including the President, by the common law offence of criminal defamation (of potentially much wider application than this clause).
This clause restates the common law offence of public violence. However, the common-law offence is not repealed, and may be charged alternatively.
This clause re-enacts and combines, with modifications, sections 47 and 48 of the Law and Order Maintenance Act.
This clause will prohibit gatherings, whether private or public, for overtly unlawful purposes conducing to public violence, public disorder or intolerance of any group, section or class of persons in Zimbabwe solely on account of the race, tribe, nationality, place of origin, national or ethnic origin, colour, religion or gender of such group, section or class of persons.
This clause will make it an offence to assault a police officer in circumstances of public violence or where a breach of the peace is likely to occur. Offenders will be liable to a fine of $200,000 or ten years’ imprisonment or both.
This clause re-enacts with modifications section 39 of the Law and Order Maintenance Act.
Under this clause a person who, to further a political objective, intimidates another – that is, threatens another person with unlawful harm to induce that person to do something he or she does not legally have to do or to refrain from doing something he or she is legally entitled to do – will be liable to a fine of $100,000 or five years’ imprisonment or both.
This clause will define the term "organiser" in relation to public gatherings; the term is used frequently in the subsequent clauses of Part IV of the Bill.
Under this clause, organisers of public gatherings will be required to give at least seven days’ written notice of their gatherings to a regulating authority – that is, to a senior police officer appointed as the regulating authority for the area concerned. The regulating authority will, however, have a discretion to waive all or part of the period of notice in appropriate cases. Failure to give notice under the clause will be punishable as a criminal offence, and will render the organiser liable for any violence that may occur as a result of the public gathering: see clause 28. Under subclause (5) gatherings or types of gatherings specified in the Schedule are exempt from the requirements of this clause.
This clause will empower a regulating authority power to issue directions regulating any particular public gathering, if he or she is satisfied on reasonable grounds that the gathering is likely to occasion public disorder, a breach of the peace or a substantial obstruction of traffic. Directions issued under the clause may prescribe the time at which a public gathering may take place, the route through which a procession may pass and measures to prevent the obstruction of roads and public places. Breach of a direction will render the organisers of the gathering liable for any resultant disorder under clause 28. An appeal will lie to the Minister against any decision of a regulating authority made in terms of the clause.
The clause will also give police officers powers to disperse public gatherings if there has been a violation of a direction issued by a regulating authority and there are reasonable grounds for believing that public order is endangered: failure to comply with such an order will be an offence carrying a penalty of a fine of $10,000 or imprisonment for six months or both
A regulating authority will have power under this clause to prohibit a public gathering if the regulating authority for the area believes on reasonable grounds that the gathering is likely to occasion public disorder. Before prohibiting a gathering the regulating authority will, wherever practicable, give the organiser an opportunity to make representations to him or her, and an appeal against the prohibition will lie to the Minister. Holding a gathering in contravention of a [sic] under the clause will result in a fine of $10,000 or six months’ imprisonment or both.
This clause will give a regulating authority power to prohibit all public gatherings within any area for up to three months, where the regulating authority believes on reasonable grounds that the powers under clauses 25 and 26 will not be sufficient to prevent public disorder being caused by public gatherings. Anyone who organises or attends a public gathering in contravention of a regulating authority’s order under this clause will be liable to a fine of $20,000 or a year’s imprisonment or both. A regulating authority will, wherever practicable, afford an opportunity to potential organisers of gatherings to make representations in the matter, and an appeal will lie to the Minister against the regulating authority’s decision.
If an organiser of a public gathering fails to give the police notice of the gathering under clause 24, or fails to comply with a direction or order regulating or prohibiting the gathering, the organiser will be liable under this clause to compensate injured parties for any injury, loss or damage they may suffer as a consequence of such failure.
This clause will give policemen and persons assisting them the right to exercise reasonable force to disperse unlawful public gatherings and to arrest people attending them.
Persons who have offensive weapons at public gatherings will be liable under this clause to a fine of $100,000 or five years’ imprisonment or both. The clause will not apply to police officers, soldiers or employees of the State or a local authority acting in their official capacities.
Under this clause, deliberate disruption of public gatherings by disorderly, threatening or abusive conduct will render the offenders liable to a fine of $50,000 or two years’ imprisonment or both.
This clause will require persons to carry an identity document on their persons when in public place and empower police officers to require their production. In order to safeguard the public’s constitutional rights, the provision specifies the circumstances under which police officers may request the immediate production of identity documents (for example, at a road block). In circumstances other than those specified, members of the public who [sic] will be afforded a reasonable opportunity to comply with the requirements of this clause.
A police officer over the rank of inspector will have the power under this clause to establish a cordon round any area, where he considers it reasonably necessary to do so in order to contain public violence or disorder or to protect the area from public violence or disorder. Passing through a cordon without authority will render the offender liable to a fine of $10,000 or to six months’ imprisonment or both.
This clause re-enacts with modifications section 59 of the Law and Order Maintenance Act.
This clause provides for the powers of police officers in relation to aircraft, aerodromes and airstrips.
No prosecutions will be capable of being instituted against anyone accused of certain serious offences under the Bill without the authority of the Attorney-General.
This clause provides for the circumstances in which the Defence Forces may be authorised to assist the police, and the conditions applicable to such assistance.
This clause substantially re-enacts section 62 of the Law and Order Maintenance Act.
This clause provides that searches of any person or premises in terms of this Bill will be conducted with strict regard to legality and decency. The powers of seizure, detention and forfeiture of articles contained in the Criminal Procedure and Evidence Act [Chapter 9:07] apply also to articles seized in terms of this Bill.
This clause re-enacts section 61 of the Law and Order Maintenance Act.
This clause will empower the Minister to amend the Schedule ("Classes of Public Gatherings to which Section 25 Does Not Apply"). Where the Minister deletes items from the Schedule, Parliamentary approval will be required.
This clause will make it clear that the Bill will not abrogate other laws relating to the dispersal of riotous gatherings or the suppression of unlawful conduct. The Bill will not therefore affect the State’s right to impose martial law, for example.
This clause will amend the Citizenship of Zimbabwe Act [Chapter 4:01] by updating a reference to the Law and Order (Maintenance) Act in the list of offences specified in the Schedule to that Act for which a person may be deprived of his or her citizenship.
This clause will amend the Criminal Procedure and Evidence Act [Chapter 9:07], mostly in order to remove references to the Law and Order (Maintenance) Act. An amendment of section 32 of the Act will provide for the pre-trial detention of persons suspected of committing certain serious offences under the Bill for up to seven days (instead of 48 hours as at present). Another amendment will extend the powers of search in terms of Part VI of the Act to allow searches to be conducted of premises within an area, where there are reasonable grounds for believing that property relating to an offence is being kept there.
This clause will amend the Miscellaneous Offences Act [Chapter 9:15] to increase the penalties for hindering or resisting the Police and for riotous conduct. The clause will also insert a definition in the Act which will clarify the meaning of "constabulary member of the Police Force".
This clause will repeal the Law and Order (Maintenance) Act [Chapter 11:07]
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