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Public Order and Security Amendment Bill, 2009
Parliament of Zimbabwe
December 11, 2009

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Public Order and Security Amendment Bill, 2009

MEMORANDUM

This Bill will amend the Public Order and Security Act [Chapter 11:17] to ensure that the public gatherings are regulated in a manner that will allow Zimbabweans to fully exercise their fundamental democratic right to express themselves through the medium of peaceful assembly and association. The Bill will also clarify some of the existing provisions in the current Act.

The clauses of the Bill provide as follows:

Clause 1
This clause sets out the Bill’s short title.

Clause 2
This clause will replace two of the definitions in section 2 of the Public Order and Security Act.

The definition of “public demonstration” will be restricted to cover only demonstrations that are sufficiently large to make it a reasonable possibility that public disorder, a serious breach of the peace or substantial obstruction of streets will occur. The new definition of “public meeting” will make it clear that domestic meetings of organisations such as political parties and trade unions will not normally fall within the Act’s provisions, and that political parties may hold meetings in venues that are not open to the public and in public places that are indoors (e.g. in public halls).

Clause 3
This clause notes the need for the regulating authorities to accord everyone, immaterial of party political affiliation, the constitutional right of freedom of peaceful assembly and association, which right may only be restricted by the regulating authority on application to a magistrates court. It also requires officers in the law enforcement agencies to undergo appropriate training on the proper application of the Public Order and Security Act and the democratic right of all Zimbabweans to engage in peaceful assembly and association.

Clause 4
Section 14 of the Public Order and Security Act empowers a “regulating authority” (i.e. a senior police officer) to ban for up to three months the carrying of catapults, axes, knives or daggers or traditional weapons if he or she believes that carrying them is likely to cause public disorder or a breach of the peace. Even trivial breaches of the peace would justify such a ban. This clause will amend the section so that only serious breaches will afford justification for a ban.

Clause 5
Section 25 of the Public Order and Security Act requires organisers of public gatherings to give the police at least seven days’ notice of the holding of a procession or public demonstration and five days’ notice of the holding of a public meeting, and makes failure to do so an offence.

This clause will amend the section to provide that organisers should give four days’ notice of the holding of a procession or public demonstration or the holding of a public meeting.

However, organisers will only have to try to give the requisite notice, and there will be no penal sanction for failing to give it. The notice can be given to any police station near the venue of the meeting. The new subsection (5) will make it clear that the police have no power to refuse permission for the holding of a public gathering (this is so under the present law), and that a failure to give notice to the police will not render a public gathering unlawful.

Clause 6
Section 26 of the Public Order and Security Act empowers a regulating authority (i.e. a senior police officer) to impose conditions on the holding of public gatherings and to prohibit a particular public gathering if he or she believes on reasonable grounds that it will cause public disorder.

This clause will introduce a number of changes to restrict the powers of the regulating authority.
Where the regulating authority imposes conditions on the holding of a public gathering, the convenor will have the right to appeal to the magistrates court against the imposition of those conditions and the magistrate must deal with this appeal on an urgent basis before the holding of the gathering.

The regulating authority will no longer have power to prohibit a public gathering; the authority will instead have to bring an application in the magistrates court for an order prohibiting the public gathering in question. Whenever it is practicable to do so, before granting an order the magistrate must afford the organiser of the public gathering concerned a reasonable opportunity to make representations in the matter.

If the magistrate grants or refuses to grant the order, there will be a right of appeal to the High Court and the High Court will have to deal with the appeal on an urgent basis.

Clause 7
Section 27 of the Public Order and Security Act allows a regulating authority to prohibit temporarily public demonstrations in an area.

This will be changed so that this power will vest in a magistrate on application by a regulating authority. Any person aggrieved by an order by a magistrate banning public demonstrations will be entitled to appeal to the High Court against the order.

Clause 8
This clause will repeal section 27A of the Public Order and Security Act, which prohibits the holding of public gatherings near Parliament or the courts, or in the vicinity of protected areas. Such gatherings will be dealt with in the same way as all other gatherings under the Act.

Clause 9
Under section 28 of the Public Order and Security Act, an organiser of a public gathering who fails to notify the police of the gathering, or who fails to comply with any direction or order given by the police in relation to the gathering, or who encourages disorder at the gathering, is civilly liable for any loss, damage, injury or death that may be caused by disorder at the gathering. This clause will amend the section to make it a defence for the organiser to prove that the disorder would probably have occurred even if he had given the requisite notice to the police, or if he had obeyed the direction or order concerned. The clause will also repeal subsection (5) of the section, which obliges a court to award damages to injured persons upon convicting the organiser of a public gathering of contravening section 24, 25, 26 or 27 of the Act. The effect of the repeal is that such an award will be discretionary, not obligatory.

Clause 10
This clause will repeal section 32 of the Public Order and Security Act, which requires everyone to carry their identity documents when in public, and empowers the Police to stop people at random and require them to produce their identity documents. The section is unconstitutional.

PRESENTED PRESENTED BY HONOURABLE GONESE

BILL

To amend the Public Order and Security Act [Chapter 11:17]
ENACTED by the President and the Parliament of Zimbabwe.

1 Short title
This Act may be cited as the Public Order and Security Amendment Act, 2009.

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