Back to Index

MISA-Zimbabwe's submissions on the proposed amendments to POSA
MISA-Zimbabwe
February 22, 2010

MISA-Zimbabwe welcomes the move by the MDC-T MP Honorable Innocent Gonese to initiate the reform of the Public Order and Security Act (POSA). It is not a secret that this piece of legislation has been criticized by many as inimical to democracy as it violates Zimbabweans' constitutionally guaranteed civic liberties such as their freedom of association, assembly and movement as well as erode their protection from arbitrary search or entry. While the act largely and directly impacts on the freedom of movement, assembly and association, by extension, the restrictions negatively impact on the citizens' right to free expression as they impinge on their freedom to meet freely and express or exchange opinions. Our submissions therefore will look in particular, at the impact of POSA in its current form on the exercise of fundamental rights and why it is imperative that it be amended as proposed.

Why it is imperative for POSA to be amended as proposed.

• The provisions allow regulatory bodies to usurp the adjudicative power of the courts in the determination of the citizen's exercise of their human rights.
  The role of adjudicating and deciding on who, when and how they should exercise their constitutionally guaranteed rights should not rest in the police as it does for example in s26 which allows the police to prohibit a public gathering and in many instances under POSA, the police are allowed to determine whether or not and in what manner people can exercise their rights to express and assemble as in s27. S14 empower the police to ban for 3 months, the carrying of weaponry at their own discretion. It is therefore important that these powers be restored to the judiciary and in the case of the regulatory authorities or any other people are aggrieved; they should equally approach the courts.

• These provisions are a duplication of the draconian Law Order and Maintenance Act LOMA.
  Most of POSA's provisions, a number of which are proposed to be amended such as s32 which empowers the police to search and require particulars from people at random, were inherited from LOMA, despite the fact that the whole act was declared unconstitutional by the Supreme Court of Zimbabwe due to its repressive nature. As such, the aspects inherited from this act, continue to be repressive and unconstitutional and it appears therefore that the repressive and unconstitutional nature of the provisions of this act are well appreciated and that the legislators intended them to be equally repressive.

• The powers of the police and other regulatory authorities are too wide and open to abuse.
  These wide discretionary powers placed in the police, end up usurping the powers of the judiciary as provided for in s25, 26, 27 and s29. These wide discretionary powers for example in s25 and 16 to entertain representations from organizers of demonstration or gathering and to decide how the people should express themselves at demonstrations and gatherings, can and has many a times been abused to quell and stifle people's rights to express themselves accordingly. Aside from this, the discretionary powers of the police are not adequately regulated or checked as in s14 and are also open to abuse and therefore need to be qualified as proposed.

• The provisions of s32, which empower the police to search and require particulars from people at random, are a breach of the right to privacy and freedom of assembly and movement.
  Aside from providing for random request and search for identity particulars, the provision also restricts the movement of someone who is at a political or public gathering who fails to produce an identity card and the police are allowed to detain that person until such an identity is verified. This is a limitation of the citizen's freedom of movement as guaranteed in s22 (1) and s17 of the constitution which protects citizens from arbitrary search and therefore a violation of the constitution. This provision can clearly be easily abused and unfairly deprive a person of the right to assemble and express himself with the rest of the group whilst he is so detained. This provision also contravenes the constitutional protections from discrimination based on political persuasion in terms of s21 and 23 of the constitution. When a similar provision was under the National Registration Act, it was found to be in violation of the constitution by the Supreme Court and was repealed but it remains so even under POSA and thus ought to be repealed.
  
• Provisions of POSA are vague, discretionary and broad.
  The provisions on what is prohibited under this law are too widely construed and they rely too much on subjective interpretation of the law as to what constitutes an offence. They do not precisely point out the areas of risk to adequately inform the public on the parameters to follow. Therefore, most of its provisions that are proposed for reform are in need of amendment to avoid being void for vagueness.
  An example is s2 the interpretation clause in its definition of the word, which gives a wide description and does not specify what constitutes public gatherings as no exact number which constitutes public gatherings, is laid down. This has been widely construed in a manner that has repressed the public's right of assembly.
  
• Proposed amendments to s25 and 26 are key to curtailing the powers of the police
  The provisions of s25 and 26 which the bill also propose to amend, clearly show the lack of appreciation of the import of fundamental forms of free expression such as marches and demonstrations as the restrictions and conditions imposable by the police end up infringing on the very rights that are granted in the constitution. The requirement for a between three and seven days notice, depending on the event is proof of this. The proposed provision that there be no penal sanctions for failure to give adequate notice is realistic in that it takes into account ad-hoc situations that may arise and which are penalized under the current act.
  
• The provisions of POSA fall beneath the international standards for the exercise and enjoyment of human rights.
  Whilst it is well accepted that no rights are absolute and are subject to certain limitations at law, the restrictions imposed by this law have the effect of depriving the citizens of the very rights they are granted in the constitution as seen above. The Constitution of Zimbabwe, as well as most international laws, permit only those restrictions that are clearly and concisely constructed to allow citizens to adequately modify their conduct in line with the law.

  The International Covenant on Civil and Political Rights whilst providing that member states such as Zimbabwe should ensure that no restrictions are placed on the exercise of the rights to freedom of assembly and association unless prescribed by law, goes ahead to state that such restrictions however should be necessary in a democratic society. Clearly, the sorts of restrictions imposed by POSA are not conducive in a democracy and it is important that the proposed bill aims to amend some of these. International human rights instruments such as the Universal Declaration of Human Rights (UDHR) in Article 12, also enjoins member states to ensure protection against arbitrary interference with an individual's privacy as is allowed by s32 of POSA and thus, POSA, also falls beneath such standards.

Conclusion

Whilst there is need for every country to put in place measures that ensure public order and security in any country, in Zimbabwe's case however, the provisions of POSA go way beyond the parameters of protection of public order and security and instead infringe on the fundamental freedoms of the very people it ought to protect. It is therefore MISA-Zimbabwe's humble submissions that the proposed amendments are very necessary and way overdue and it is our hope that these proposed reforms will see the light of the day as they are part of the key to the realization of democracy in Zimbabwe.

Visit the MISA-Zimbabwe fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP