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Legislative reform series 1/2010 [POSA Amendment Bill]
Veritas
February 15, 2010

POSA Amendment Bill - The Bill is Now Before Parliament

The MDC-T Chief Whip, Mr Innocent Gonese, introduced a private members Bill in the House of Assembly to amend the Public Order and Security Act [POSA] on 2nd February. The House agreed that the Bill could be introduced and it follows the procedures for all Bills – it has had its first reading and has been referred to:

• the Parliamentary Legal Committee [PLC] for a report on whether or not its provisions are consistent with the Constitution [The PLC has not yet met to consider the Bill]
• the relevant House of Assembly Portfolio Committee – the Portfolio Committee [PC] on Defence and Home Affairs. The PC has had two meetings on this Bill, one on the 1st February when the Ministry of Home Affairs and the police briefed the it on their reactions to the Bill and the second a week later when Mr Gonese explained the Bill. In addition the PC is holding a series of public hearings this week and next to ascertain public views on the Bill [for public hearing dates and venues see Bill Watch Special of 14th February]. [Veritas will make available the PLC and PC reports on the Bill as soon as they have been tabled in Parliament.]

[Documents offered: electronic versions of [1] POSA Amendment Bill, including explanatory memorandum, and [2] POSA annotated to show the effect of the amendments proposed by the Bill.]

How will the Bill Amend POSA

Clause 2: New definitions of “public demonstration” and “public meeting”: Demonstrations hit by POSA will be limited to those large enough to make it reasonably possible that they will cause public disorder, serious breaches of the peace or substantial obstruction of streets. The new definition of “public meeting” [more than 15 persons] will make it clear that domestic meetings of political parties and trade unions are not hit by POSA, and that political parties are free to hold meetings in private places and in halls and other public places that are indoors.

Clause 3: Protection of freedoms of assembly and association: This clause requires police and others administering POSA to bear in mind the constitutional right to engage in peaceful assembly and that public meetings, demonstrations and processions may only be prohibited by a magistrate [see clauses 6 and 7 for prohibition of meetings]. The Commissioner-General must ensure that police administering the Act undergo appropriate awareness training.

Clause 5: Notice of public gatherings: this clause seeks to reduce to four days the notice that must be given to the police by organisers of public gatherings, and also to decriminalise failure to give such notice

Clauses 6 and 7: Giving the courts, not the police, the power to ban public gatherings: this clause will give magistrates the power, currently exercised by the police, to prohibit public gatherings and demonstrations.

Clause 8: Repeal of ban on gatherings near Parliament, courts and protected areas: This clause will repeal the standing ban on these gatherings, so that in future they must be dealt with like all other gatherings.

Clause 9: Civil liability of organisers of gatherings: Section 28 of POSA saddles the organiser of a public gathering with civil liability for damage caused by disorder resulting from the gathering in certain cases, such as where the gathering was not notified to police or police directions are not followed. This clause will allow the organiser to escape liability for compensation where he can prove that there would probably have been disorder even if police had been notified and police directions followed. In addition, the clause will remove a provision obliging a court to award damages to injured persons whenever convicting an organiser of breaching the Act; this will now be left to the court’s discretion.

Clause 10: Removal of obligation to carry IDs: The clause will repeal section 32 of POSA, which requires the carrying of IDs in public places and allows police to stop people at random and demand production of IDs.

Criticisms of the Bill

The Permanent Secretary for Home Affairs Mr Melusi Matshiya, told the PC that the Bill “waters down the powers of the police and renders [their] operations ineffective” and a senior police officer said it would “put State security at risk”. In particular, they were reported to have criticised the following provisions of the Bill:

Clause 5: Notice of public gatherings: Mr Matshiya is reported as saying that the current seven days’ notice is both reasonable and necessary “so that we have sufficient power to protect everybody to enjoy his or her rights”. The senior police officer added: “If we don’t criminalise it [the failure to give notice] we are playing around with the security of the State.”

Clauses 6 and 7: Giving the courts, not the police, the power to ban public gatherings: Mr Matshiya said that giving magistrates the power, currently exercised by the police, to prohibit public gatherings and demonstrations will infringe the constitutional role of the Police Force: “According to the Constitution, it is the role of the police to protect, not the courts,” he is reported as saying.

Is there any substance in these criticisms?

Clause 5: Notice of public gatherings: The first point to remember is that everyone has a constitutionally-guaranteed right to convene and attend public meetings and processions. That right must not be diluted or diminished unless it is necessary to do so in the interests of public safety or public order, and any restrictions on the right must be reasonably justifiable in a democratic society [Constitution, section 22].

The second point to note is that at present section 25 of POSA requires only five days’ notice to be given of public meetings [the seven-day notice period applies only to public processions and demonstrations] and during elections the notice period for meetings is reduced to three days.

The requirement to give seven days’ notice of a procession or demonstration is onerous and not always necessary, and it prevents the holding of spontaneous demonstrations and processions. There is no provision in the Act allowing the police to accept shorter notice. If three days is sufficient notice for meetings during election periods, when political passions are running high, it seems unreasonable to insist on seven days for processions at other times.

Mr Matshiya’s opposition to the abolition of the crime of failing to give notice of a gathering can be countered. The threat of criminal sanctions has not stopped unnotified demonstrations taking place and is unlikely to stop them in future. If it does not serve its purpose, there is no point in retaining it. Besides, anyone who suffers loss or injury from a gathering which was not notified to the police has a civil remedy against the organisers under section 28 of POSA — and Mr Gonese’s Bill will not remove that remedy.

Clauses 6 and 7: Giving the courts, not the police, the power to ban public gatherings

If Mr Matshiya is correctly reported as saying that it is the constitutional role of the police, rather than the courts, to protect people, that would reflect a fundamental misunderstanding of the Constitution. In any society that respects the rule of law, the courts are there to protect fundamental rights and freedoms. The police have the function of maintaining law and order, but the courts must ensure that they do so without infringing peoples’ rights and democratic freedoms. It is therefore perfectly appropriate for a magistrate, rather than a police officer, to be given the task of deciding whether or not a meeting or demonstration should be allowed to take place. The decision involves weighing the conflicting interests of freedom of assembly, on the one hand, and the maintenance of public order on the other. That decision unquestionably falls within the role of the courts rather than the police. [This is especially so in view of the police record on public gatherings. There is an overwhelming public perception of past and present police application of POSA so as to favour the former ruling party and suppress the legitimate activities of other parties and organisations on political rather than public order grounds.]

Clause 4: Banning of Catapults and Traditional Weapons: Another misunderstanding of the law has appeared in press reports that clause 4 of the Bill will curtail the power of the police to ban the possession of traditional weapons by restricting that power to when there has been a serious breach of peace, whereas under POSA at present they may do so at the slightest occurrence of a breach of the peace.

In fact, section 14 of POSA allows senior police officers to ban the possession of catapults, axes and traditional weapons if they believe that carrying them is likely to cause a breach of the peace, however trivial. There is no need for a breach of the peace to have actually occurred before the ban can be imposed; all that is necessary is for a senior police officer to believe that one is likely to occur. Clause 4 of the Bill will simply require a police officer to foresee a serious breach of the peace before imposing a ban.

In both cases — i.e. under the present Act and under POSA as amended by the Bill — the police will retain their ordinary powers to deal with breaches of the peace, both serious and trivial, which actually occur.

Conclusion

Mr Gonese’s Bill will not reduce the ability of the police to maintain law and order. It will simply ensure that they do not overstep their legitimate powers.

There are many people who would like POSA reformed more radically. But as the Bill has to be passed by both Houses of Parliament, it needs the support of all parties, and Hon Gonese has crafted a Bill that should be acceptable to all.

*Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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