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POSA
and the right to freedom of assembly: Submissions by Zimbabwe Lawyers
for Human Rights to the Parliamentary Portfolio Committee on Home
Affairs and Defence
Zimbabwe
Lawyers for Human Rights (ZLHR)
February 22, 2010
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The Public
Order and Security Act [Chapter 11:17] (hereinafter referred
to as "POSA"), promulgated in 2002, has severely curtailed
the right to free assembly that is articulated in various established
human rights instruments to which Zimbabwe is, of its own free will,
a State Party. These include the African
Charter on Human and Peoples' Rights (ACHPR) and the International
Covenant on Civil and Political Rights (ICCPR), amongst others.
This corrosive
legislation has also eroded the content of the right to freedom
of assembly provided for in section 21(1) of the Constitution
of Zimbabwe, as well as the right to freedom of movement, association
and expression, amongst other fundamental rights.
Fundamental
rights can be sparingly limited, on good and reasonable cause, where
this is in the interests of (a) preserving public safety, public
order, public morality or public health; or (b) for the purpose
of protecting the rights or freedoms of other persons; or (c) where
exercising one's fundamental rights imposes restrictions upon
public officers in the execution of their constitutional duties.
Whilst it is accepted
that the right to assembly can be limited, this must only be done
in exceptional circumstances, which are reasonably justifiable in
a democratic society. Any limitation must therefore be done transparently,
and in a manner, which respects the principle of separation of powers.
The current
limitations to fundamental rights which are imposed by provisions
of POSA and the manner in which such provisions and powers have
been implemented in the past have clearly shown that the legislation,
as it currently exists, does not protect the fundamental rights
and interests highlighted above; neither has its implementation
in practice complied with permissible limitations provided in the
Constitution of Zimbabwe or the regional and international treaties
to which Zimbabwe is bound.
Rather, this
legislation, which we must never forget replaced and actually tightened
the Law and Order (Maintenance) Act which was imposed on the majority
population by the racist and illegal minority Smith regime, has
been used since 2002 to suppress legitimate political and social
dissent and criticism, as well as to unconstitutionally and arbitrarily
restrict the exercise by human rights defenders, legitimate political
activists, and the general public, of their fundamental rights to
move, gather, receive information and speak out - critical
aspects of exercising their right to participate in the governance
of their country.
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