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and Public Gatherings: Part II - Peace Watch 2/2010
February 24, 2010
and Public Gatherings: Part II
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.
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.
Can Police Order the Dispersal of a gathering
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
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.]
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.]
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.
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.
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)].
in Gathering With Intent to Promote Public Violence, Breaches of
the Peace or Bigotry
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.]
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].
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].
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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