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order and Security Act - Zimbabwe
August 23, 2004
No one is surprised
when an autocratic, dictatorial or totalitarian government introduces
oppressive measures to facilitate its continuing hold on power.
Thus it was expected that Rhodesian governments, illegitimate settler
conquerors in the eyes of black Zimbabweans, would use a variety
of laws to prevent any activity which might lead to African majority
rule. The laws they utilised included the Law and Order Maintenance
Act and a State of Emergency, which gave government wide powers
to deal with both non-violent political protest and armed resistance.
When an apparently
democratically and freely elected black government retained such
laws after Independence in 1980, there was serious cause for concern.
Powers exercised by the ZANU PF government under the State of Emergency
saw thousands detained in the 1980s. Thousands more were killed
and tortured. The stated justification was the threat of destabilisation
by apartheid South Africa and an alleged armed uprising in Matabeleland
and Midlands provinces. The effect was to close democratic space
in an independent Zimbabwe and to crush opposition and civil society
voices throughout the 1980s.
At the end of
1987, the opposition ZAPU was emasculated by the Unity Agreement
and two years later, at the moment when progress towards democracy
began in South Africa, the State of Emergency was lifted. The Law
and Order Maintenance Act remained on the books, but when government
used it to suppress public demonstrations, the Supreme Court declared
some sections unconstitutional. Thus the people claimed back some
democratic rights which had been denied through the 1980s.
The end of the
Emergency coincided with the introduction of an economic structural
adjustment programme. As its effects made the government more unpopular
and produced a broad-based opposition movement, ZANU PF resolved
to clamp down again through more oppressive legislation The aging
Law and Order Maintenance Act would be repealed, but it would be
replaced by its younger more muscular brother, the Public Order
and Security Act. Various drafts were circulated before it finally
became law in January 2002, just before the March Presidential election.
Together with its anti-democratic cousins the Presidential Powers
Act and the Access to Information and Protection of Privacy Act,
POSA has been used, just as Ian Smith used LOMA and the State of
Emergency, to prevent the growth of opposition and deny the democratic
right of people to freely choose their government.
is a great deal of ignorance of the actual provisions of POSA and
their correct interpretation. The public have been effectively intimidated,
just by mentioning it, and the police, whether deliberately or through
ignorance, apply it wrongly with great regularity.
POSA is an extensive
piece of legislation, but the effective sections appear in Part
II, Part III, and Part IV. Part II is entitled Offences against
Constitutional Government and Public Security. Most of this
part is carried over from the Rhodesian law to counteract armed
struggle in the 1960's and 1970's. Section 5 makes it an offence
to "subvert constitutional government" by setting up a
group or suggesting setting up a group to overthrow the government
by unconstitutional means. The section is followed by more detailed
offences relating to insurgency, banditry, sabotage or terrorism,
as well as possession of weapons.
originally designed to combat armed insurrection, have been deliberately
misused in charges brought against opposition MDC members, mainly
in relation to the abortive "final push" in June 2003. At that time
the opposition, blocked by fraudulent electoral practices from succeeding
at the polls, attempted to lead mass street demonstrations. They
were then accused of "subverting constitutional government". None
of the charges have been followed through to convictions, because
the MDC has adhered very strictly to a policy of non-violent constitutional
activity, rejecting any suggestion of violent response to oppression,
and the courts at least have been able to recognise this fact.
The more anti-democratic
sections of Part II are those which make it an offence to "cause
disaffection among Police Force or Defence Force"(sec 12), "publish
or communicate false statements prejudicial to the State" (sec 15)
and "undermine the authority of or insult the President" (sec 16).
It is not difficult to see how these sections can easily be used
by the state to silence voices of legitimate criticism, which should
be guaranteed under the freedom of expression section of our constitution.
And indeed they have been used, section 15 especially against journalists,
and sec 16 against both journalists and individuals who just happen
to criticise the President within hearing of the CIO. The potential
for abuse by police when the President is a candidate for re-election
is enormous. The line between expected criticism and undermining
authority is deliberately erased.
Part III creates
"Offences Against Public Order. These include public violence (sec
17), throwing articles at persons, vehicles (sec 18), gatherings
conducing to riot , disorder or intolerance (sec 19), and assaulting
or resisting peace officer (sec 20). Sections 17 and 19 specifically
state that the offence is committed by a person acting with one
or more other persons, and the emphasis is on the use of force to
create a disturbance or disorder. Two further sections add undermining
of police authority and intimidation which is intended to further
a political objective in Zimbabwe. While one would not object to
the criminalisation of political violence, such offences are already
catered for under the common law. What is most dangerous about this
part of the law is the way in which it is deliberately misconstrued
by the police and used by them to inhibit legitimate activity by
the political opposition and by civil society. Peaceful demonstrators
are repeatedly arrested and charged under sec 19 with behaviour
conducing to riot or disorder. Thus section 19 in particular has
been used to break up legitimate protests against government policies
where no violence or threat to public order exists. ZANU PF supporters,
on the other hand, regularly commit acts of political violence,
frequently incited by the authorities, while the police look on,
doing nothing to stop them. Meanwhile people who want to protest
peacefully against their deteriorating standard of living are accused
of behaviour conducive to riot or disturbing the peace.
Part IV, entitled
"Public Gatherings" is most commonly used against MDC campaign meetings,
but also against normal activities of civil society bodies, including
trade unions. Sections 24-31 lay down conditions for the holding
of public gatherings. Anyone who wishes to organize a public gathering
must notify the police four days in advance (sec 24). The police
may then place restrictions on the gathering (sec 25) or prohibit
it entirely (sec 26), if they have "reasonable grounds for believing"
the gathering will result in public disorder, a breach of the peace,
or obstruction of any thoroughfare. These provisions are regularly
misunderstood or deliberately misapplied by the police. The organisers
of a gathering are required to "notify" the police; the section
does not state that the police must "give permission". Having been
notified the police then have the power to prohibit, but only on
those specified grounds. If no prohibition is made by the responsible
authority, then the law is that the gathering is not prohibited
and may proceed.
given by the police for prohibiting gatherings are entirely flimsy.
They have even been known to claim that the responsible authority
is not available. Other reasons have been that ZANU PF has booked
the same venue, or that the gathering is likely to provoke disorder.
Where disorder has been caused on a previous occasion by ZANU PF
or by the police themselves, permission has been refused on that
basis. While appeal to the High Court against police prohibition
is possible, refusal is often given at the last minute, when little
time remains. On at least one occasion, a High Court judge faced
with such an appeal by WOZA denied that the matter was urgent, and
refused to give a ruling before the time scheduled for a demo, thus
effectively upholding the police decision without having to give
The other sections
of Part IV provide for general prohibitions on all gatherings in
a specific district, for civil liability of the organiser of gatherings
for any damage caused, dispersal of unlawful gatherings, and the
prohibition of weapons at gatherings, which by definition includes
any stone. In practice it is not surprising that ZANU PF gatherings
are virtually never prohibited, while others are regularly blocked.
required to constitute a public gathering are nowhere specified.
This has led to many people and organisations transposing the two
or more persons mentioned in sections 17 and 19 to apply to public
gatherings. Furthermore, a schedule to the Act exempts a list of
classes of public gathering to which section 24 does not apply.
Those exempted from the obligation to notify the police include
organisers of religious, educational, sporting events, weddings,
funerals, professional meetings, and others, as well as organisations
not of a political nature and specifically, registered trade unions
when meeting for bona fide trade union purposes.
Two points need
to be made here. One is that the public have not understood the
detail of these sections of the law and consistently fear to hold
any type of gathering, public or private, or rush to inform the
police of every innocent workshop or training session clearly not
of a public nature. This attitude is aggravated by the fact that
the definitions of Public gathering and public place in the Act
are extremely wide. But further, the police themselves go far beyond
the definitions in the Act. Thus they have raided private houses
where clearly private meetings have been taking place, have broken
up consultative trade union meetings, and we even find the police
sitting in on ordinary leadership workshops of the opposition party.
At one point the ZCTU had to obtain a High Court order barring the
police from attending their executive committee meeting. Beyond
that, of course, section 26 has been ruthlessly applied within the
definitions to prevent opposition organisation and even to prevent
sitting MPs and councillors from holding report-back meetings with
their constituents. The MDC has consistently been prohibited from
holding consultative meetings with their leadership at provincial,
district and ward levels.
In spite of
this constant harassment, many civic organisations have gone ahead
to hold gatherings without notifying the police, as they know they
will be prohibited if they notify. Thousands of arrests have been
made and charges preferred. But very few of those arrested have
been brought to trial and virtually none have been convicted. Often
prosecutors have refused to bring charges under POSA before the
courts, and have reduced them to offences under the Miscellaneous
Offences Act, such as blocking a thoroughfare, where they know that
charges under sec19 could not succeed. Since many of the charges
are blatantly dishonest both prosecutors and magistrates have at
times declined to co-operate with the police efforts to abuse their
powers. Where charges have been preferred under sections 19 and
24, repeated remands occur, so that few cases have been brought
to trial. A recent trial of 47 women of WOZA demonstrates the point.
They were initially charged under section 19 when they held a protest
demanding the repeal of POSA; they were repeatedly remanded for
almost a year. When the women finally faced trial, it was shown
that the facts did not fit the requirements of sec 19 as clearly
no riotous behaviour or public disorder had occurred, so the charge
was changed to an offence under the Miscellaneous Act. They were
finally discharged on a charge of blocking a thoroughfare when police
witnesses contradicted each other and the state thus failed to bring
prima facie evidence .
point is that POSA has no section making it an offence to participate
in an unlawful gathering. Hence charges have been wrongly brought
under either section 19 or 24 against those who simply joined a
peaceful demonstration. The courts have then declined to proceed
or to convict.
It is clear,
furthermore, that many of the provisions of POSA are unconstitutional
in terms of the Zimbabwean Declaration of Rights, denying the guaranteed
rights of assembly and freedom of expression. When anyone charged
under these sections is brought to trial and placed on his or her
defence, they can challenge the constitutionality of the section
through an application to the Supreme Court. However, the failure
by government to bring those charged to trial means that few constitutional
challenges have so far been brought. It is in fact ZANU PF who has
subverted constitutional government by their manipulative tactics.
They pass through Parliament a law which is patently unconstitutional.
Then, through their politicisation of the police and the judiciary,
prevent that law being challenged in the Supreme Court. The law
remains in force and is implemented for purely political ends to
keep ZANU PF in power.
another clearly unconstitutional measure was introduced, first under
the Presidential Powers Act (which amounts to a temporary decree)
and then as an amendment to the Criminal Procedure and Evidence
Act. This measure denies a person the right to apply for bail for
an initial 7 days (under the legislated amendment, yet to be gazetted
into law, 2 days), and if prima facie evidence is produced, a further
21 days. While it is targeted primarily at those who are arrested
for "economic crimes" it also applies to those charged with offences
relating to the "subversion of constitutional government", in Part
II of POSA. Nothing is to stop the police from arresting opposition
and civic leaders on spurious charges, and distorting or fabricating
evidence, all of which has become standard police practice, and
keeping them locked up without the right to apply for bail. It in
fact re-introduces detention without bail or trial, which were practised
widely under the State of Emergency by both Smith and ZANU PF.
When POSA was
forced through Parliament in January 2002 over protests of its unconstitutionality,
many critics observed that it was designed to ensure that President
Mugabe was re-elected in March of that year. But ZANU PF"s vision
was focussed further in the future. They knew, as Ian Smith knew
in 1965, that a government considered illegitimate by the people
after a fraudulent election would face continued vehement opposition.
POSA was one of their chosen instruments for silencing those voices.
They would use legislation more appropriate for dealing with armed
opposition to break legitimate non-violent democratic activity.
Thus they would maintain a fagade of democratic normality while
in fact pursuing the path of dictatorship.
POSA has indeed
inhibited both political opposition and civil society from organising
mass protests against government policies and the effects of economic
collapse. Normal political organising, meetings and campaigns have
been obstructed. While many brave leaders are prepared to defy what
they see as an unjust law, the rest of the community is thoroughly
cowed by the prospect of becoming victims of police action. Even
the threat of arrest is terrifying in light of the inhuman conditions
in police cells and the risk of torture at the hands of sadistic,
politicised police officers, both uniformed and non-uniformed. Those
popular leaders who defiantly continue what they consider to be
justifiable activities are kept occupied and hobbled by repeated
stints in cells, remands and court appearances, not to mention medical
treatment for the effects of poor conditions and physical assaults
in the cells. POSA has succeeded in crippling democratic processes,
but not completely defeating them. In the face of extreme brutality
and provocation brave souls continue to keep the voice of democratic
protest alive and refuse to be driven to violence to fight an illegitimate
regime. The ZANU PF government has twisted and abused its legislative
and judicial powers to keep on the statute book a law which is patently
unconstitutional and undemocratic. It claims to be democratically
elected but uses this oppressive law to remain in power against
the wishes of the people.
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