Statutory Instrument 101a
Background
Content
WHEREAS it is provided in section 86 of the Constitution that fundamental rights and freedoms set out in the Declaration of Rights may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors;
AND WHEREAS it is provided in section 27(1) of the Public Order and Security Act Chapter II:l7l (No. 1 of 2002) that if a regulating authority for any area believes on reasonable grounds that the powers conferred by section 26 ("Consultations, negotiations, amendment of notices, and conditions with respect to processions, public demonstrations and public meetings to avoid public disorder") of that Act will not be sufficient to prevent public disorder being occasioned by the holding of processions or public demonstrations or any class thereof in the area or any part thereof, he may issue an order prohibiting, for a specified period not exceeding one month, the holding of all public demonstrations or any class of public demonstrations in the area or part thereof concerned:
NOW, THEREFORE, I, Chief Superintendent Newbert Saunyama of the Zimbabwe Republic Police, being the Regulating Authority of the Harare Central Police District in my capacity as the Officer Commanding Harare Central Police District, hereby, in terms of section 27 of the [[Public Order and Security Act [Chapter 11:17], make the following order: -
Title
1. This Order may be cited as the Public Order and Security (Temporary Prohibition of Public Demonstrations in the Central Business District of the Harare Central Police District) Order, 2016.
Interpretation
2. ln this Order- "Harare Central Police District" means the area bounded by Rekayi Tangwena Avenue, Coventry Road, Rotten Row, the National Railways of Zimbabwe line up to the Mukuvisi River, Enterprise Road, Churchill Road, Swan Drive, Cork Road, Sandringham Drive, Drummond Chaplin Street and Bishop Gaul Avenue; "Regulating Authority" means Chief Superintendent Newbert Saunyama of the Zimbabwe Republic Police, being the Regulating Authority of the Harare Central Police District in his capacity as the Officer Commanding Harare Central Police District.
Narration
3. The Regulating Authority, believing on reasonable grounds that the powers conferred by section 26 of the Public Order and Security Act [Chapter 11:17] will not be sufficient to prevent public disorder being occasioned by the holding of processions or public demonstrations or any class thereof in the Harare Central Police District, hereby issues this Order prohibiting, for a period of two weeks from Friday, the 2nd September, 2016 to Friday, the 16th September, 2016, the holding of all public demonstrations in the Harare Central Police District.
Offence
4. For the avoidance of doubt it is declared that, in terms of section 27(5) of the Public Order and Security Act [Chapter 11:17], any person lvho organises or assists in organising or takes part in or attends any procession or public demonstration held in contravention of an order under section 27(1) of the Act shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
Reactions To The Statutory Instrument
Opposition parties under the banner of the National Electoral Reform Agenda (Nera) launched a court battle against the Statutory Instrument. Nera head of legal affairs, Douglas Mwonzora said the opposition parties are represented by People’s Democratic Party leader, Tendai Biti.
Although constitutional lawyer, Lovemore Madhuku said it was within government’s power to ban the protests, Mwonzora argued the statutory instrument violated the Constitution because protesting was a basic human right, that falls under the Bill of Rights and any piece of legislation taking away the rights was ultra vires (beyond the legal power or authority of) the charter.
Mwonzora also said,
The power to issue a statutory instrument rests in a government minister, not an officer of the police. How can an officer commanding a district make law? This not constitutional.
[1] Apart from challenging the government concerning the ban, Nera also cancelled their demonstration slatted for 2 September. Mwonzora said,
We do not have enough time to appeal against the instrument before tomorrow, hence, we have been forced to postpone our intended demo to a later agreed date.
Nera rescheduled the demonstration to September 16, after the expiry of the police order.[2]
References
- ↑ Everson Mushava, Demo ban: Opposition takes Mugabe head-on, NewsDay, published: September 3, 2016, retrieved: September 6, 2016
- ↑ Everson Mushava/Obey Manayiti, Govt bans all demos, NewsDay, published: September 2, 2016, retrieved: September 6, 2016
