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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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