The common standard of measuring the constitutionality of exceptions or derogations from a constitutional right is provided for in section 86(2) of the Constitution. It provides that the rights provided for in the Declaration of Rights “may be limited but 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 …”
This rule is the gold-standard of judging whether or not the limitation is constitutional. A number of factors may be considered in addition, such as whether there are other less restrictive ways of limiting rights, the purpose of the limitation and whether it necessary in the interests of public order, safety, defence, etc. A court has to consider all the factors, balancing the affected rights and the purpose of the limitation, in this case the purpose of SI 101A. The police should not use the excuse of their own limitations to contravene people’s rights.
In this case, SI 101A only applies to a section of Harare and does not apply generally to other parts of the country. There has to be justification as to why central Harare alone has been selected. The ban affects only a section of the population and no sufficient justification has been given for this selectivity of the law.
SI 101A has to be fair, reasonable, necessary and justifiable in a democratic society based on openness, freedom, etc. However, SI 101A is indiscriminate and prohibits even peaceful demonstrations. A blanket ban on all future demonstrations is patently unreasonable and unjustifiable in a democratic society. Each demonstration must be dealt with on its own merits and if demonstrators are aggrieved by a decision of the police to stop a demonstration, they must be able to go to court to place their case before an impartial judge. This is how it has been all along.
However, clearly, this ban in intended to pre-empt judicial scrutiny of police bans on individual demonstrations. Courts have generally ruled in favour of demonstrations, much to the disappointment of government, hence this move to establish a blanket ban on demonstrations. To that extent, SI 101A violates the right to a fair hearing, protected under section 69 of the Constitution. I would go further and invoke section 68, which protects the right to fair administrative conduct, but the points already advanced in his piece are sufficient to demonstrate the unconstitutionality of SI 101A.
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