Statutory Instrument 101 A of 2016 is unconstitutional & an abuse of power

By Tariro Senderayi 

Last week Zimbabwean Government ushered in their latest creation to clamp down and descend on the constitutional right of citizens to demonstrate. Apparently, the strength of POSA lacked oomph and was not being felt enough by the unsuspecting citizenry. Thus, this predicament on the part of the police led to the orchestration of a stronger dose of POSA which is in the form of Statutory Instrument101 A of 2016.

We thought we had seen it all a few weeks ago in the draft Cybercrime Bill that is notoriously unconstitutional, but apparently that was just a mere curtain raiser for what was to come. Thus, SI101A of 2016 was gazetted in the Government Gazette Extraordinary on 1 September 2016 as an order that prohibits the holding of all public demonstrations in Harare Central from Friday 2 September to Friday 16 September.

SI 101 A is an extension of POSA (Public Order and Security Act), of which POSA has been known to be highly repressive in its provisions. POSA comes as the direct first born of LOMA (Law and Order Maintenance Act) which was a key piece of legislation which oiled the repressive colonial Smith regime machinery.

Personally, it comes as no surprise that this ban of demonstrations for two weeks has been crafted what with the sporadic nature of demonstrations in Harare CBD nowadays. What with opposition parties calling out for electoral reforms in preparation for 2018 and the citizenry demanding the address of bread and butter issues through demonstrations and protests that have mushroomed one after the other. Something had to give on the regime’s part.

In the midst of it all there is the unanswered issue of the ongoing police brutality in these demonstrations which seems to be the elephant in the room as the authorities move to clamp down on protestors instead of finding a way to impact a decline in cases of police brutality on protestors.

The ban is meant to operate for two weeks. However, it is unknown if its operation will remain temporary as the rumor mill in the grapevine is churning out one probability of Governments’ intention to amend the Constitution. Yes, I said it… we may have to brace ourselves for a new constitutional amendment.

In my view, the willy nilly correction of the Constitution in Zimbabwe has actually contributed to the weakening of its provisions. We can borrow a leaf from South Africa who have used the same constitution till to date since they gained independence in 1994. Never has it been amended and that means there has been less tampering with the entitlements enshrined therein. On the contrary, Zimbabwe has seen the amendment of the Constitution being done 19 times and currently we are sitting on the 20th amendment. Which begs the question, what in essence is being corrected so many times or these corrections are actually fueling centralization of power and discarding a principle of democratic states which is the Devolution of Power? We need to be worried if that is the intention.

Apparently, in the 1980’s Zimbabwe had a state of emergency that was renewed every six months. And maybe we are headed in that direction. It is a suspicion I have because why put so much energy in crafting a ban on demonstrations that will run for only two flat weeks? I believe there is a more sinister agenda which shall unfold itself as time goes by.

The ban is unconstitutional for a number or reasons as it limits the fundamental freedoms and rights enshrined in the Declaration of rights. By banning the right to demonstrate peacefully you have also limited the freedom of expression found in section 59 of the Constitution. Section 59 guarantees the right to demonstrate and present petitions peacefully. Thus, the SI 101 A directly contravenes this as it bans demos and processions including peaceful ones within Harare CBD.

  • Section 58 of the Constitution protects the right to freedom of assembly and association. The implication of the ban is that by banning protests and other processions, the instrument disappointingly prevents people from assembling and associating even as labour groups protesting against unfair labour practises. Thus, the ban failing the constitutional test.
  • Section 61 guarantees the freedom of expression which some call the right to free speech. Demonstrating is a form of expression and the ban violates this entitlement.
  • Section 62 guarantees the freedom of movement and SI 101 A constitutes a direct restriction of the right to free movement.
  • Section 67 guarantees one with political rights and these have been done away with by the ban. The list goes on and it is without reasonable doubt that the ban undermines the power of the supreme law of the land and as a result should fall away.
  • The ban applies to Harare CBD and doesn’t apply to other parts of the country which is a cause for concern. This points to selective application of the law yet the law stipulates that everyone is equal before the law and application of the law should not be biased. Thus, the ban is discriminatory in nature as it only targets the Harare metropolitan and nowhere else.

My worry is what shall transpire after the ban has prescribed? Is it business as usual for the Harare protestors or something more sinister is yet to come and these two weeks are merely buying time for the regime to sharpen their weaponry and wage a full blown war against its people?

We thought we had seen it all when the cybercrime Bill was drafted, now we have the controversial S1 101 A and it begs the question of what shall be next. Amending the Constitution, maybe? Or the continuous crafting of pieces of legislation that are clearly not in tandem with the provisions of the Constitution which in my view is now the order of the day yet it is wrong to normalise the abnormal? It is left to be seen.

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