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submissions on the proposed amendments to POSA
February 22, 2010
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.
it is imperative for POSA to be amended as proposed.
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.
provisions are a duplication of the draconian Law Order and Maintenance
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
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.
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.
amendments to s25 and 26 are key to curtailing the powers of the
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.
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.
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.
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.
the MISA-Zimbabwe fact
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