Zimbabwe ban on demonstrations is unconstitutional- expert

The new ban comes in the wake of a number of political protests against government, which have taken place in Harare and other urban areas in recent months. #ThisFlag, #Tajamuka, #ThisGown and other citizens' movements have been leading the demonstrations, alongside the traditional political parties which are also campaigning for electoral reforms. There have been instances of violence, mostly instigated by the police service which has responded overzealously and violently to opposition and citizens protests. They have been selective, however, treating ZANU PF's pro-government demonstrations leniently.

The latest ban is supposed to run for 2 weeks, from 2 September 2016 to 16 September 2016 and covers Harare Central Police District. The provision in POSA under which the order has been issued allows such bans to run only for a specified period of no more than one month. Nevertheless, there is no guarantee that the ban will not be renewed upon the expiry of the current 2 week period or later periods. To that extent, it is probable that the ban may become a permanent rather than a temporary feature in Harare. This is reminiscent of 1980s Zimbabwe when the State of Emergency was renewed every 6 months

The primary element to note is the nature of the instrument used to issue this ban. It is an order made by a police officer under a statutory instrument, in effect a decree. It is therefore subsidiary legislation, which is dealt with under section 134 of the Constitution. To determine whether or not it is valid, the first test is whether it complies with constitutional requirements for statutory instruments set out under section 134.

While section 134 of the Constitution recognises that Parliament may delegate its law-making powers, it also makes it clear in paragraph (b.) that “statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights”. The language used – “must not” shows that this is a mandatory prohibition. A perusal of SI 101A shows that it clearly infringes upon a number of fundamental rights and freedoms. It bans the right to demonstrate peacefully. By so doing it also bans freedoms of expression and assembly. It infringes the right to human dignity and a number of political rights. On that count alone, SI 101A fails the constitutional test. This should be the end of the enquiry but there is more to be said against SI 101A.

Section 134(f) also requires all statutory instruments to be “laid before the National Assembly in accordance with its Standing Orders and submitted to the Parliamentary Legal Committee for scrutiny”. This provision was designed to ensure that statutory instruments go through parliamentary scrutiny. The Parliamentary Legal Committee is an important institutional safeguard designed to protect the Constitution. The PLC scrutinises all bills and in this case all SIs to ensure that they are constitutional. If SI 101A is placed before the PLC, it would be incompetence or a dereliction of duty on its part if it failed to find that it breaches section 134 (b.) of the Constitution.

As stated, SI 101A breaches section 134(b.) of the Constitution because it contravenes a number of fundamental rights and freedoms enshrined under the Declaration of Rights. It is important to set out these rights and the breaches.

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