Freedom of Peaceful Assembly
Zimbabwe is a party to the International Covenant on Civil and Political Rights (ICCPR), which it acceded to on 13 May 1991, and which provides for the rights to freedom of peaceful assembly and of association under articles 21 and 22.
The Constitution guarantees freedom of peaceful assembly. Various pieces of legislation give effect to Sections 58 and 59 of the Constitution that provides for this fundamental right such as the Public Order and Security Act (POSA), the Criminal Law (Codification and Reform) Act and the Electoral Act.
I was informed that the POSA will soon be repealed and replaced by the Maintenance of Peace and Order Bill (MOPO) which “will provide mechanisms to ensure that the police in maintaining law, order and suppression of civil commotion or disturbances in any police district do so in a manner that does not compromise human rights”.
While I acknowledge that there is a need to enact a new law in accordance with international human rights norms and standards, the MOPO bill has worrying similarities to the POSA revealing a common scope in which the exercise of the right to peaceful assembly is not fully guaranteed. Instead the MOPO bill continues to give law enforcement agencies broad regulatory discretion and powers.
The MOPO bill does not propose significant substantive amendments targeted to address the main problems prevailing in the POSA. One important improvement is the deletion of Section 27 of the POSA related to the temporary prohibition of holding processions or public demonstrations within particular police districts, however this change is made based on the declaration of unconstitutionality made by the Constitutional Court in 2018. Another improvement is the provision mandating the President, instead of the Minister of Defence (as provided by POSA), to authorize the deployment of military forces to assist the police in exercising their functions, and report promptly to Parliament bringing it in line with the Constitution.
I have emphasized in my different meetings with government authorities that assemblies should be presumed lawful and peaceful. Permissible limitations to this right are set out in international law and require the Government to explicitly justify any limitation, to explain the necessity of any limitation, its legality and proportionality in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. Citizens should be able to challenge such limitations in the courts. Under international law it is not enough for a Government to say demonstrations pose a national security threat, a Government has the obligation to identify the specific risks it is concerned about, the measures it will implement to mitigate such risks and the limited number of restrictions it will order to manage the risks. Blanket prohibitions are rarely lawful. The role of the Government is to mitigate risks to enable the enjoyment of the fundamental right to peaceful protest.
From my discussions on recent events, I have perceived that the use of military forces has a profound negative impact, including in the minds of the population, who fear these forces are not adequately trained to handle demonstrations. On this point, I would like to stress that the involvement of the military in the managing of assemblies contradicts the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, as they provide that military forces must only be used in exceptional circumstances and only if absolutely necessary. This same criteria has been used by the CCPR that has recommended “to ensure that public order is, to the maximum extent possible, upheld by civilian rather than military authorities” (CCPR/C/VEN/CO/4).
I am also concerned that the MOPO bill contains notification requirements for certain gatherings, including cumbersome administrative processes – that amount to an authorization, not a notification regime. It is also of concern that spontaneous assemblies are not protected in the bill, which does not recognize the right of individuals to engage in spontaneous public gatherings.
I have requested to be briefed on how the notification procedure is implemented in practice in different provinces and found that it is extremely burdensome in terms of administrative requirements but also very intrusive in its demands, undermining the exercise of this fundamental freedom for public gatherings and private meetings.
I firmly believe that the exercise of the right to freedom of peaceful assembly should not be subjected to authorization. At most, a prior notification procedure is sufficient, in order to facilitate peaceful assemblies and to take measures to protect public safety and order and the rights and freedoms of others.
Moreover, spontaneous assemblies should be recognized in law and exempted from prior notification in conformity with the jurisprudence of the CCPR that reaffirms that article 21 contains an obligation to facilitate spontaneous assemblies without interference.
I am also concerned by the provisions of the MOPO Bill regarding the administrative liability of organizers as well as the criminal liability of organizers and participants of gatherings. Such legal consequences undermine the exercise of the right to freedom of assembly especially as the law does not clearly define the administrative or criminal offenses and the language could provide for a very extensive interpretation of the liability of individuals entitled to exercise this right.
Finally I would like to express my concern in relation to the provisions that allow the police broad discretion to disperse public gatherings as well as the broad search and seizure powers given to law enforcement agencies. The United Nations Basic Guidelines on the Use of Force by law enforcement officers, provide important guidance on these matters in line with international human rights standards.
I trust that as a result of this visit and the good level of cooperation that I have experienced with the Government and seek to maintain, it will be possible for the government to examine the concerns that have been raised in order to revise the MOPO bill according to international human rights standards.
Furthermore, throughout my visit, I have noted that restrictive practices also limit the enjoyment of this freedom.
The restrictions described to me range from very subtle forms of interference, to threats issued by public authorities to suppress protests and dissent, to the use of the judicial system to impose unlawful charges and/or the use of disproportionate and excessive force resulting in massive violations against protestors. I have also heard of numerous cases of arbitrary detentions, cases of injury, torture and even the loss of innocent lives.
Recurrently during meetings with civil society actors, trade union leaders or representatives of dissenting political parties, I have learnt of several number of occasions in which there has been unjustified denials of authorization to demonstrate, some even with extremely short notice, making it virtually impossible to call off the protests at the very last minute and resulting into unwarranted liability.
In response to this seemingly common practice, it was drawn to my attention that the organisers of assemblies are compelled to recurrently challenge these decisions in the courts in order to be able to exercise this fundamental right though the support of court orders.
Another, worrying example is the use of Section 22 of the Criminal Law (Codification and Reform) Act provision on “subverting a constitutional government” to prosecute human rights defenders, civil society and opposition leaders suspected of having played important roles in protests. The crime is similar to treason and could attract up to 20 years of imprisonment. From my meetings, it transpired that leaders calling for protests, supporting protests through public statements or social media, and participating in protests have been charged with this crime and I have been informed that in this year alone, 22 individuals are facing this criminal charge.
I have also heard extremely disturbing reports of excessive, disproportionate and lethal use of force against protestors, through the use of tear gas, batons and live ammunition.
In particular, I would like to refer to the authority’s response to the protests of January 2019 calling for a national ‘stay-away’ in response to massive fuel price increases. The order to disperse protestors participating in the demonstrations led to the use of lethal and excessive use of force, mass arbitrary arrests and torture. Unlawful restrictions on access to internet were also put in place.
On this occasion, I was informed that the military was deployed to the streets in different parts of the country, including in Bulawayo, Harare city centre, Chitungwiza Township and high-density suburbs of Epworth, Mabvuku and Kuwadzana. While I was informed that there was looting and destruction of private property, the disproportionate response by the security forces to the turmoil resulted, according to different sources, in at least 17 killings, including 14 men and 3 women, with more than 300 people treated for serious injuries including 70 for gunshot wounds. I was informed that one police officer in Bulawayo died as a result of these events.
From the conversations held with government authorities in and outside the capital on the facts related to these very unfortunate events, it is clear that, in line with the existing legislation, law enforcement officials view their role in managing assemblies as a public order function, rather than a protection function.
I would like to reiterate my call to the Government to adopt a human rights based approach that facilitates assemblies as an integral human right of every person. An approach that allows for specific, targeted, legal and measured responses to prevent, contain and respond to specific incidents of violence in the context of protests. An approach that leads to the establishment of a well-trained force and professional democratic policing.
From my meetings with different stakeholders, I also heard the testimonies of individuals who lost valuables and property and who until now have not received compensation in respect of these violent acts.
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