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POSA and Public Gatherings: Part II - Peace Watch 2/2010
Veritas
February 24, 2010

POSA and Public Gatherings: Part II

Outlined in Peace Watch 1/2010: what organisers of meetings, processions and demonstrations must do to comply with the provisions of POSA. In this issue: police powers when meetings, processions and demonstrations actually take place, including their power the disperse a gathering, and a list of the various criminal offences organisers and participants may find the police using against them.

Police Powers When Public Gatherings Take Place

Section 29 of POSA spells out the powers of the police during the course of a public meeting, procession or demonstration — and the section applies whether or not the police have been given advance notice [Remember: a gathering is not unlawful simply because the police have not been given notice of it]:

  • Where the police have been notified, they may compel participants to comply with any conditions laid down at the consultative meeting, and to adhere to the route agreed upon.
  • Where the police have not been notified, they may restrict the gathering to a particular place or guide participants along a route designed to ensure minimum interference with traffic or access to workplaces and to prevent injury to persons or damage to property.
  • The police may order persons interfering or attempting to interfere with a gathering to cease doing so and to keep their distance.
  • If the police feel unable to provide sufficient protection, they must inform the convenor and the participants.

When Can Police Order the Dispersal of a gathering

Under section 29 of POSA a police officer of or above the rank of assistant inspector may [but is not obliged to] disperse a public meeting, demonstration or procession, but only if:

  • the meeting, procession or demonstration is being conducted in breach of a prohibition or condition imposed by police; or
  • any act is committed that endangers persons and property.

[In other words, there is no power given to disperse a gathering merely because it was not notified to police.]

There is a strictly laid down procedure for dispersal:

  • First, the police officer must attract the attention of participants and call on them to disperse, and in a loud voice order them in English and in ChiShona or SiNdebele to depart within a reasonable time specified by him or her.
  • · If participants do not disperse within that time, the officer may order police under his command to disperse the participants, if necessary by force.
  • The force used to disperse a gathering must be no greater than is necessary and must be proportionate to the circumstances.
  • Weapons likely to cause serious injury or death must not be used [POSA, section 29(3)].

If the situation turns ugly

If a participant or someone interfering with participants, kills or seriously injures a person, or manifests an intention to do so, or destroys or does serious damage to property or attempts to do so; the police may resort to the use of firearms and other weapons; even in these circumstances firearms may be used only if other methods of control are ineffective or inappropriate [POSA, section 29(5)].

[If a convenor responsible for a gathering or a person present at the gathering considers police have unnecessarily broken up a gathering and/or have used excessive force in breaking up a gathering, then a lawyer should be consulted with a view to suing the Government and the individual police officers responsible.]

Taking of Photographs During Gatherings

Taking of photographs during demonstrations is not prohibited in POSA or in the Police Act. An assault on a person so doing or taking their camera or film is illegal and also actionable. [But there are some buildings and places, such as army barracks, key bridges, the President’s residence, which are protected places where photography is prohibited. Journalists covering gatherings should familiarise themselves with the list of protected places.]

Criminal Offences

Police will also have the right to take action, should the facts justify their doing so, to arrest and prosecute participants and others for contraventions of POSA or the Criminal Law Code.

Failing to Give the Police Notice of a Gathering

As noted earlier, an organiser of a public meeting, demonstration or procession who fails to give the police advance notice in accordance with POSA is guilty of an offence and liable to a fine of level 12 [currently US $2 000] or a year’s imprisonment or both [POSA, section 25(5)]. Again, it must be noted that failure to give notice does not render the gathering unlawful.

Contravening a Prohibition Notice or a Condition for the Holding of a Gathering

Anyone who knowingly holds a public meeting, demonstration or procession which has been prohibited by the police, or who knowingly breaches a condition imposed by the police on the holding of such a gathering is guilty of an offence and liable to a fine of level 14 [currently US $5 000] or a year’s imprisonment or both [POSA, section 26(11)].

Participating in Gathering With Intent to Promote Public Violence, Breaches of the Peace or Bigotry

Anyone who, with other people in a public place:

  • does anything with the intention of forcibly disturbing the peace of the public or invading the rights of others, or realising there is a real risk or possibility of such a disturbance or invasion; or
  • says or displays anything that is obscene, abusive or insulting with the intention of breaching the peace or engendering racial or gender-based hatred, or realising there is a real risk or possibility of such a breach;

is guilty of an offence and liable to a fine of level 10 [currently US $700] or five years’ imprisonment or both [Criminal Law Code, section 37)]. [This is the provision under which WOZA leaders have been facing trial for over a year, and which they have challenged in the Supreme Court as being an unconstitutional infringement of their freedom of expression, assembly and association. The long-awaited Supreme Court judgment is still to be delivered.]

Public Violence

Anyone who, acting in concert with one or more other persons, forcibly and to a serious extent disturbs the peace, security or order of the public or any section of the public or invades the rights of other people, intending such disturbance or invasion or realising that there is a real risk or possibility that such disturbance or invasion may occur, is guilty of the offence of public violence and liable to a fine of level 12 [currently US $ 2 000] or ten years’ imprisonment or both [Criminal Law Code, section 36].

Disrupting a Public Meeting, Demonstration or Procession

If hostile individuals or groups try to disrupt a public meeting, demonstration or procession by engaging in disorderly or riotous conduct or using threatening, abusive or insulting words or behaving in a threatening, abusive or insulting manner, they can be arrested and prosecuted for the crime of disrupting a public gathering and sentenced to a fine of level 5 [currently US $200] or six months’ imprisonment or both [Criminal Law Code, section 44].

Obstructing Roads

Anyone who encumbers or obstructs the free passage along any street, road, thoroughfare, sidewalk or pavement is guilty of criminal nuisance and liable to a fine of level 5 [currently US $200] or six months’ imprisonment or both [Criminal Law Code, section 46 as read with para 2(f) of the Third Schedule)].

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