The Constitutional Court (Con-Court) yesterday delivered a landmark ruling which has far-reaching implications for the policing of public gatherings and protests in the country.
It said the draconian Public Order and Security Act (Posa) — which was a favourite weapon of former leader Robert Mugabe whenever he needed to crush the opposition — is unconstitutional.
Posa was enacted in 2002, replacing the equally detested Law and Order Maintenance Act (Loma), which was enacted by the Rhodesians before the country’s independence in 1980, to suppress political activism by blacks during the bitter years of Zimbabwe’s liberation struggle.
Under Posa, police enjoyed wide and discretional powers such as sanctioning or banning public gatherings and peaceful demonstrations with some rogue officers often using excessive force to deal with peaceful protesters.
“Having found that the limitation in Section 27 of Posa is not fair, reasonable or necessary, I have not been able to find any other basis upon which it can be justified.
“In addition to failing to pass the test on fairness, necessity and reasonableness, there is another feature of Section 27 of Posa that I find disturbing.
“It has no time frame or limitation as to the number of times the regulating authority can invoke the powers granted to him or her under the Section. Thus, a despotic regulating authority, could lawfully invoke these powers without end.
“This could be achieved by publishing notices prohibiting demonstrations back to back as long as each time the period of the ban is for one month or less.
“It thus has the potential of negating or nullifying the rights not only completely but virtually,” the historic judgment put together by Rita Makarau, and agreed to by eight other judges, noted.
The apex court also said in terms of the country’s Constitution, peaceful demonstrations were a guaranteed right.
“On the basis of the foregoing, it is my finding that Section 27 of the Public Order and Security Act (Chapter 11:17) is unconstitutional.
“In the result, I make the following order: the question referred to this court by the Supreme Court is answered as follows: Section 27 of the Public Order and Security Act (Chapter 7:11) is unconstitutional.
“The declaration of constitutional invalidity of Section 27 of the Public Order and Security Act is suspended for six months from the date of this judgment,” the court ruled.
The Con-Court ruling came as a result of an application by vendors, opposition parties and civic groups — who challenged section 27 of Posa which was routinely used by the government to thwart and crush demonstrations in the past.
This, in turn, came after Judge President George Chiweshe had upheld a ban on demonstrations in 2016, after ruling that police were within the Constitution parameters then, and that Posa was justified in a democratic society.
Yesterday, the Con-Court vehemently disagreed with that ruling.
“Once having found that the provisions of Section 27 of Posa have the effect of imposing greater restrictions than are necessary to achieve their purpose, the High Court ought to have found the provision unconstitutional without qualification.
“It is the blanket or dragnet effect of the ban that is permissible under Section 27 of Posa that taints the whole provision.
“It matters not that the ban may be limited both geographically and in terms of time, a blanket or dragnet ban is neither fair, reasonable nor necessary. It is irrational,” the Con-Court said.
Under Posa, public gatherings had to be first cleared by the police — who effectively acted as the judges, jury and executioners — and this resulted in tens of thousands of Zimbabweans becoming victims of this provision.
Analysts also say Posa was one of the key instruments that were used to keep Mugabe in power for nearly four decades as it was exploitatively deployed to foil dissent and peaceful demonstrations under his ruinous rule.
Yesterday’s ruling comes as temperatures are rising over the government’s recent austerity measures, which have been rejected by long-suffering ordinary Zimbabweans.
Meanwhile, political analysts told the DAILY NEWS that the Con-Court ruling was most significant and “an encouraging sign” under President Emmerson Mnangagwa’s
“I think it will be important for the government to acknowledge that the law has been misused in the past for political purposes.
“I think that this will go a long way in building some faith and credibility in the government.
“Posa was really a strengthened iteration of the Rhodesian legislation that was a repressive component of the legal machinery that (late Rhodesian leader) Ian Smith regime had in place,” said Piers Pigou — a senior consultant with the International Crisis Group.
Namibia-based scholar Admire Mare said the court ruling was a victory for ordinary people who had suffered much at the brutal hands of authorities.
“I think it’s a victory for all progressive and democracy loving Zimbabweans because finally citizens can organise, raise their grievances and co-ordinate public gatherings without being constrained by an archaic piece of legislation.
“Let’s hope more unconstitutional laws will now be dealt with once and for all,” Mare told the Daily News.
Stephen Chan, Professor of World Politics at the School of Oriental and African Studies (SOAS) — of the University of London — also welcomed the Con-Court ruling.
“I have myself always regarded Posa as not being in keeping with the Constitution. At this stage I would simply view this as correct jurisprudential thinking on an Act which was both suppressive and unconstitutional,” Chan said.
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