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space and state security: Zimbabwe's Public Order and Security Act
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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
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
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.
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.
the full document
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).
Government's own memorandum to the first version of POSA announced
that the intention was to replace the "Draconian" Law
and Order (Maintenance) Act.
Government of Ian Smith, which sought to entrench white minority
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".
53 of 1960 and subsequently, Chapter 39
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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