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Democratic space and state security: Zimbabwe's Public Order and Security Act (POSA)
Derek Matyszak
March 02, 2005

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Introduction
This paper seeks to examine the way in which the Government of Zimbabwe, under the guise of providing for State security and public order, has closed the democratic space for those opposed to its rule. I am concerned with activity that would be considered innocuous or healthy in any vibrant democracy. Those sections of the Public Order and Security Act (POSA) that relate to the use of force against the State are not discussed here.¹

On attaining independence in 1980, the new Government in Zimbabwe retained the Draconian² legislation that had been enacted by the previous Smith regime³ to curtail the Nationalist threat to its hold on power.⁴ The incoming Government stated that the very legislation they had campaigned against during the liberation war, was now needed to counter destabilization by apartheid South Africa. Amongst this legislation was the precursor to the present Public Order and Security Act, the Law and Order (Maintenance) Act (LOMA).⁵ Furthermore, for the first eleven years of independence the country retained the State of Emergency initiated by the Smith government. Zimbabwe's Constitution provides⁶ that during a State of Emergency, an Act of Parliament may derogate from those sections of the Declaration of Rights that deal with liberty, freedom from arbitrary search, freedom of expression, freedom of association, freedom or movement and discriminatory laws.⁷ Accordingly, for the first eleven years of independence, most of the provisions of LOMA could not be subjected to constitutional challenge.

The State of Emergency was allowed to lapse on 25 July 1990. The following decade saw a widening of democratic space as civil society took advantage of a Bill of Rights that had become fully justiciable for the first time in the country's history.⁸ Civil society grew at a rapid pace in these years.

The year 2000 is generally accepted as a watershed year in Zimbabwean politics. In that year a new constitution for the country, proposed by the Government, was rejected in a nation-wide referendum. Civil society had campaigned against this proposed Constitution and had clearly played a key role in its rejection. Given the disaffection with the Government at the time of the referendum, the poll was largely seen as a vote for or against the Government rather than a vote for or against the proposed constitution itself. With parliamentary elections due a few months after the referendum and the presidential election due in 2002, the ruling ZANU (PF) party had good reason to fear defeat at the polls in both elections.

ZANU (PF) moved rapidly to close down the democratic space that had led to this first major defeat at the polls. Its modus operandi involved a confluence of the authoritarian legislative techniques inherited from the former colonial regime and the tactics of the liberation struggle - which included the use of endemic violence. The amalgam is a singularly nasty form of authoritarian nationalism which is at its most articulate in the form of POSA and its praxis - the subject of this paper.

Conclusion
The principle objection to POSA is the manner in which it facilitates gross executive interference in the freedoms of speech and assembly. This is largely achieved through the fact that its legislates a "hecklers veto." Hence meetings are banned and statements suppressed on the supposed basis that their subject matter is deeply objectionable to a certain section of the population and thus may occasion disorder. The executive makes this determination, and thus not surprisingly, objectionable subject matter is inevitably found to be that which criticizes the executive. In a democratic society the ability to allow or prohibit a public gathering does not lie with the executive. The role of the police is limited to ensuring that the logistical arrangements pertaining to the public gathering do not unduly interfere with public life, that is, that the inconvenience occasioned by the public gathering is kept to a minimum. Thus the role of the police should be restricted to matters pertaining to the time, route etc of the public gathering. And even such determinations should be subject to appeal to an independent body. The common law offences pertaining to incitement to violence sufficiently cover the needs of public order relating to freedom of expression. There is clearly a need to remove or substantially overhaul all repressive and undemocratic legislation interfering with freedom of assembly and freedom of speech.

There is also a pressing need for a return to impartial policing which will require a radical a change in the ethos of the police. The police force must become a force that performs its duties fairly and professionally. They must no longer apply or misapply the law so as to destroy the democratic right to freedom of assembly and speech.

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1. Although these provisions have many aspects which are not acceptable in a democracy - see generally Professional Audit of the Public Order and Security Act commissioned by the Zimbabwe Liberators Platform August 2002 (hereafter the ZLP Report).
2. The Government's own memorandum to the first version of POSA announced that the intention was to replace the "Draconian" Law and Order (Maintenance) Act.
3.The Government of Ian Smith, which sought to entrench white minority rule.
4. Amongst this legislation is the Sedition Act, 1936; the Subversive Activities Act, 1950; the Public Order Act, 1955; the Unlawful Organisations Act [Chapter 91]; The Emergency Powers Act [Chapter 83] and the Law and Order Maintenance Act [Chapter 65]. Such was the Draconian nature of this latter piece of legislation that the then Chief Justice resigned in protest describing the Act as a "savage, evil mean and dirty law".
5. Act 53 of 1960 and subsequently, Chapter 39
6.Section 25 as read with the Second Schedule.
7. Sections 13, 17, 20, 21, 22, & 23 respectively.
8. Under the 1961 and 1965 Constitutions law in existence prior the coming into force of the constitutions was protected from constitutional challenge - sections 70(1)(b) and 79(1)(b) respectively. LOMA was in fact rushed through parliament so that it would be in place before the 1961 Constitution. Under the 1969 Constitution the Declaration of Rights was not justiciable at all.

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