Sokwanele comment

23 August 2004

No one is surprised when an autocratic, dictatorial or totalitarian government introduces oppressive measures to facilitate its continuing hold on power.  Thus it was expected that Rhodesian governments, illegitimate settler conquerors in the eyes of black Zimbabweans, would use a variety of laws to prevent any activity which might lead to African majority rule. The laws they utilised included the Law and Order Maintenance Act and a State of Emergency, which gave government wide powers to deal with both non-violent political protest and armed resistance.

 

When an apparently democratically and freely elected black government retained such laws after Independence in 1980, there was serious cause for concern. Powers exercised by the ZANU PF government under the State of Emergency saw thousands detained in the 1980s.  Thousands more were killed and tortured.  The stated justification was the threat of destabilisation by apartheid South Africa and an alleged armed uprising in Matabeleland and Midlands provinces.  The effect was to close democratic space in an independent Zimbabwe and to crush opposition and civil society voices throughout the 1980s.

 

At the end of 1987, the opposition ZAPU was emasculated by the Unity Agreement and two years later, at the moment when progress towards democracy began in South Africa, the State of Emergency was lifted. The Law and Order Maintenance Act remained on the books, but when government used it to suppress public demonstrations, the Supreme Court declared some sections unconstitutional.  Thus the people claimed back some democratic rights which had been denied through the 1980s. 

 

The end of the Emergency coincided with the introduction of an economic structural adjustment programme. As its effects made the government more unpopular and produced a broad-based opposition movement, ZANU PF resolved to clamp down again through more oppressive legislation   The aging Law and Order Maintenance Act would be repealed, but it would be replaced by its younger more muscular brother, the Public Order and Security Act.  Various drafts were circulated before it finally became law in January 2002, just before the March Presidential election.  Together with its anti-democratic cousins the Presidential Powers Act and the Access to Information and Protection of Privacy Act, POSA has been used, just as Ian Smith used LOMA and the State of Emergency, to prevent the growth of opposition and deny the democratic right of people to freely choose their government.

 

However, there is a great deal of ignorance of the actual provisions of POSA and their correct interpretation.  The public have been effectively intimidated, just by mentioning it, and the police, whether deliberately or through ignorance, apply it wrongly with great regularity.

 

POSA is an extensive piece of legislation, but the effective sections appear in Part II, Part III, and Part IV.  Part II is entitled Offences against Constitutional Government and Public Security. Most of this part is carried over from the Rhodesian law to counteract armed struggle in the 1960s and 1970s.  Section 5 makes it an offence to subvert constitutional government by setting up a group or suggesting setting up a group to overthrow the government by unconstitutional means.  The section is followed by more detailed offences relating to insurgency, banditry, sabotage or terrorism, as well as possession of weapons.  These sections, originally designed to combat armed insurrection,  have been deliberately misused in charges brought against opposition MDC members, mainly in relation to the abortive final push in June 2003.  At that time the opposition, blocked by fraudulent electoral practices from succeeding at the polls, attempted to lead mass street demonstrations. They were then accused of subverting constitutional government.  None of the charges have been followed through to convictions, because the MDC has adhered very strictly to a policy of non-violent constitutional activity, rejecting any suggestion of violent response to oppression, and the courts at least have been able to recognise this fact.

 

The more anti-democratic sections of Part II are those which make it an offence to cause disaffection among Police Force or Defence Force(sec 12), publish or communicate false statements prejudicial to the State (sec 15) and undermine the authority of or insult the President (sec 16).  It is not difficult to see how these sections can easily be used by the state to silence voices of legitimate criticism, which should be guaranteed under the freedom of expression section of our constitution. And indeed they have been used, section 15 especially against journalists, and sec 16 against both journalists and individuals who just happen to criticise the President within hearing of the CIO.  The potential for abuse by police when the President is a candidate for re-election is enormous.  The line between expected criticism and undermining authority is deliberately erased.

 

Part III creates Offences Against Public Order.  These include public violence (sec 17), throwing articles at persons, vehicles (sec 18), gatherings conducing to riot , disorder or intolerance (sec 19), and assaulting or resisting peace officer (sec 20).  Sections 17 and 19 specifically state that the offence is committed by a person acting with one or more other persons, and the emphasis is on the use of force to create a disturbance or disorder.  Two further sections add undermining of police authority and intimidation which is intended to further a political objective in Zimbabwe.  While one would not object to the criminalisation of political violence, such offences are already catered for under the common law.  What is most dangerous about this part of the law is the way in which it is deliberately misconstrued by the police and used by them to inhibit legitimate activity by the political opposition and by civil society.    Peaceful demonstrators are repeatedly arrested and charged under sec 19 with behaviour conducing to riot or disorder.  Thus section 19 in particular has been used to break up legitimate protests against government policies where no violence or threat to public order exists.  ZANU PF supporters, on the other hand, regularly commit acts of political violence, frequently incited by the authorities, while the police look on, doing nothing to stop them.  Meanwhile people who want to protest peacefully against their deteriorating standard of living are accused of behaviour conducive to riot or disturbing the peace.

 

Part IV, entitled Public Gatherings is most commonly used against MDC campaign meetings, but also against normal activities of civil society bodies, including trade unions.  Sections 24-31 lay down conditions for the holding of public gatherings.  Anyone who wishes to organize a public gathering must notify the police four days in advance (sec 24).  The police may then place restrictions on the gathering (sec 25) or prohibit it entirely (sec 26), if they have reasonable grounds for believing the gathering will result in public disorder, a breach of the peace, or obstruction of any thoroughfare.  These provisions are regularly misunderstood or deliberately misapplied by the police.  The organisers of a gathering are required to notify the police; the section does not state that the police must give permission.  Having been notified the police then have the power to prohibit, but only on those specified grounds.  If no prohibition is made by the responsible authority, then the law is that the gathering is not prohibited and may proceed.

 

The excuses given by the police for prohibiting gatherings are entirely flimsy.  They have even been known to claim that the responsible authority is not available.  Other reasons have been that ZANU PF has booked the same venue, or that the gathering is likely to provoke disorder.  Where disorder has been caused on a previous occasion by ZANU PF or by the police themselves, permission has been refused on that basis.  While appeal to the High Court against police prohibition is possible, refusal is often given at the last minute, when little time remains.  On at least one occasion, a High Court judge faced with such an appeal by WOZA denied that the matter was urgent, and refused to give a ruling before the time scheduled for a demo, thus effectively upholding the police decision without having to give any justification.

 

The other sections of Part IV provide for general prohibitions on all gatherings in a specific district, for civil liability of the organiser of gatherings for any damage caused, dispersal of unlawful gatherings, and the prohibition of weapons at gatherings, which by definition includes any stone.  In practice it is not surprising that ZANU PF gatherings are virtually never prohibited, while others are regularly blocked. 

 

The numbers required to constitute a public gathering are nowhere specified.  This has led to many people and organisations transposing the two or more persons mentioned in sections 17 and 19 to apply to public gatherings.  Furthermore, a schedule to the Act exempts a list of classes of public gathering to which section 24 does not apply.  Those exempted from the obligation to notify the police include organisers of religious, educational, sporting events, weddings, funerals, professional meetings, and others, as well as organisations not of a political nature and specifically, registered trade unions when meeting for bona fide trade union purposes.

 

Two points need to be made here.  One is that the public have not understood the detail of these sections of the law and consistently fear to hold any type of gathering, public or private, or rush to inform the police of every innocent workshop or training session clearly not of a public nature.  This attitude is aggravated by the fact that the definitions of Public gathering and public place in the Act are extremely wide.  But further, the police themselves go far beyond the definitions in the Act.  Thus they have raided private houses where clearly private meetings have been taking place, have broken up consultative trade union meetings, and we even find the police sitting in on ordinary leadership workshops of the opposition party.  At one point the ZCTU had to obtain a High Court order barring the police from attending their executive committee meeting.  Beyond that, of course, section 26 has been ruthlessly applied within the definitions to prevent opposition organisation and even to prevent sitting MPs and councillors from holding report-back meetings with their constituents.  The MDC has consistently been prohibited from holding consultative meetings with their leadership at provincial, district and ward levels.

 

In spite of this constant harassment, many civic organisations have gone ahead to hold gatherings without notifying the police, as they know they will be prohibited if they notify.  Thousands of arrests have been made and charges preferred.  But very few of those arrested have been brought to trial and virtually none have been convicted.  Often prosecutors have refused to bring charges under POSA before the courts, and have reduced them to offences under the Miscellaneous Offences Act, such as blocking a thoroughfare, where they know that charges under sec19 could not succeed.  Since many of the charges are blatantly dishonest both prosecutors and magistrates have at times declined to co-operate with the police efforts to abuse their powers.  Where charges have been preferred under sections 19 and 24, repeated remands occur, so that few cases have been brought to trial.  A recent trial of 47 women of WOZA demonstrates the point. They were initially charged under section 19 when they held a protest demanding the repeal of POSA; they were repeatedly remanded for almost a year.  When the women finally faced trial, it was shown that the facts did not fit the requirements of sec 19 as clearly no riotous behaviour or public disorder had occurred, so the charge was changed to an offence under the Miscellaneous Act. They were finally discharged on a charge of blocking a thoroughfare when police witnesses contradicted each other and the state thus failed to bring prima facie evidence

 

One interesting point is that POSA has no section making it an offence to participate in an unlawful gathering.  Hence charges have been wrongly brought under either section 19 or 24 against those who simply joined a peaceful demonstration.  The courts have then declined to proceed or to convict.

 

It is clear, furthermore, that many of the provisions of POSA are unconstitutional in terms of the Zimbabwean Declaration of Rights, denying the guaranteed rights of assembly and freedom of expression.  When anyone charged under these sections is brought to trial and placed on his or her defence, they can challenge the constitutionality of the section through an application to the Supreme Court.  However, the failure by government to bring those charged to trial means that few constitutional challenges have so far been brought.  It is in fact ZANU PF who has subverted constitutional government by their manipulative tactics.  They pass through Parliament a law which is patently unconstitutional.  Then, through their politicisation of the police and the judiciary, prevent that law being challenged in the Supreme Court.  The law remains in force and is implemented for purely political ends to keep ZANU PF in power.

 

More recently, another clearly unconstitutional measure was introduced, first under the Presidential Powers Act (which amounts to a temporary decree) and then as an amendment to the Criminal Procedure and Evidence Act.  This measure denies a person the right to apply for bail for an initial 7 days (under the legislated amendment, yet to be gazetted into law, 2 days), and if prima facie evidence is produced, a further 21 days.  While it is targeted primarily at those who are arrested for economic crimes it also applies to those charged with offences relating to the subversion of constitutional government, in Part II of POSA.  Nothing is to stop the police from arresting opposition and civic leaders on spurious charges, and distorting or fabricating evidence, all of which has become standard police practice, and keeping them locked up without the right to apply for bail.  It in fact re-introduces detention without bail or trial, which were practised widely under the State of Emergency by both Smith and ZANU PF.

 

When POSA was forced through Parliament in January 2002 over protests of its unconstitutionality, many critics observed that it was designed to ensure that President Mugabe was re-elected in March of that year.  But ZANU PFs vision was focussed further in the future.  They knew, as Ian Smith knew in 1965, that a government considered illegitimate by the people after a fraudulent election would face continued vehement opposition.  POSA was one of their chosen instruments for silencing those voices.  They would use legislation more appropriate for dealing with armed opposition to break legitimate non-violent democratic activity.  Thus they would maintain a fagade of democratic normality while in fact pursuing the path of dictatorship.

 

POSA has indeed inhibited both political opposition and civil society from organising mass protests against government policies and the effects of economic collapse.  Normal political organising, meetings and campaigns have been obstructed.  While many brave leaders are prepared to defy what they see as an unjust law, the rest of the community is thoroughly cowed by the prospect of becoming victims of police action.  Even the threat of arrest is terrifying in light of the inhuman conditions in police cells and the risk of torture at the hands of sadistic, politicised police officers, both uniformed and non-uniformed.  Those popular leaders who defiantly continue what they consider to be justifiable activities are kept occupied and hobbled by repeated stints in cells, remands and court appearances, not to mention medical treatment for the effects of poor conditions and physical assaults in the cells.   POSA has succeeded in crippling democratic processes, but not completely defeating them. In the face of extreme brutality and provocation brave souls continue to keep the voice of democratic protest alive and refuse to be driven to violence to fight an illegitimate regime. The ZANU PF government has twisted and abused its legislative and judicial powers to keep on the statute book a law which is patently unconstitutional and undemocratic.  It claims to be democratically elected but uses this oppressive law to remain in power against the wishes of the people.

 

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