Zimbabwe ban on demonstrations is unconstitutional- expert

First, section 59 guarantees the right to demonstrate and present petitions peacefully. SI 101A clearly violates this right as it bans all demonstrations and processions, including peaceful ones, within the area of central Harare. Each demonstration must be judged on its own merits.

Second, section 58 protects the right to freedom of assembly and association. Marches, protests and other processions which have been banned under SI 101A stop people from assembling and associating as they wish within central Harare, itself a clear violation of these rights. Workers who wish to exercise their labour right provided for under section5 are also caught in this ban.

Third, section 61 guarantees the freedom of expression, also commonly referred to as the right to free speech. There are qualifications to this right, such as the probation against hate speech or incitement to violence, but overall it is an important right which covers people’s rights to demonstrate as they are also a form of expression.

Further, section 66(2) protects the freedom of movement within Zimbabwe. Every Zimbabwean citizen and everyone else who is legally in Zimbabwe has “the right to move freely within Zimbabwe”. Free movement includes movement in any manner that a person chooses – whether individually or as part of a group. Banning marches and demonstrations in central Harare constitutes a restriction on the right to free movement.

In addition, section 67(2) makes extensive provision for the protection of political rights, which include the right to:

–    Form, to join and to participate in the activities of a political party or organisation of their choice;

–    Campaign freely and peacefully for a political party or cause;

–    Participate in peaceful political activity; and

–    To participate, individually or collectively, in gatherings or groups or in any other manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause.

Finally, there is a strong case to be made that SI 101A is a serious infringement upon the right to human dignity. The right to human dignity, provided for in section 51 of the Constitution is a broad and important right which is recognised in international human rights instruments, by courts and human rights scholars as a foundation upon which all other rights are built and enjoyed. It’s meaning is broad and flexible, ensuring broader protections and interpretations of other individual rights. Undermining one’s freedom to demonstrate, express themselves, associate with others and to participate in political activity can be argued to be serious violations of one’s dignity as a human being. In fact, in this context, this may be regarded as the most important of all rights that are affected by SI 101A in that section 86(3) of the Constitution lists it as one of the absolute rights from which no law can derogate. In other words, to the extent that SI 101A violates the right to human dignity, it is completely unconstitutional and it cannot even be saved by section 86(2) of the Constitution, which makes some allowances for laws that limit fundamental rights. These are clear constitutional rights which have effectively been banned within the area of central Harare covered by SI 101A.

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