INTRODUCTION
On
4 July 2017, the Supreme Court, acting in terms of section 175(4) of
the Constitution referred a constitutional matter to this Court. The
essence of its order is to seek from this Court an answer to the
question whether or not section 27 of the Public Order and Security
Act [Chapter 7.11] (POSA) is ...
INTRODUCTION
On
4 July 2017, the Supreme Court, acting in terms of section 175(4) of
the Constitution referred a constitutional matter to this Court. The
essence of its order is to seek from this Court an answer to the
question whether or not section 27 of the Public Order and Security
Act [Chapter 7.11] (POSA) is constitutional.
The
facts giving rise to the constitutional matter are common cause. I
set them out hereunder.
On
1 September 2016, the first respondent published a statutory
instrument in terms of which he, acting in his capacity as the
regulating authority for the Harare Central Police District, banned,
for a period of two weeks, the holding of any public processions or
demonstrations within the Harare Central Police District. In acting
as he did, the first respondent relied on the provisions of section
27 of the Public Order and Security Act [Chapter 7.11] (POSA), which,
in subsection (1) provides:
“27(1)
If a regulating authority for any area believes, on reasonable
grounds, that the powers conferred by section 26 will not be
sufficient to prevent public disorder being occasioned by the holding
of processions or public demonstrations or any class thereof in the
area or any part thereof, he may issue an order prohibiting, for a
specified period not exceeding one month, the holding of all public
demonstrations or any class of public demonstrations in the area or
part thereof concerned.”
On
2 September 2016, a day after the publication of the Statutory
Instrument, the applicants (Democratic
Assembly for Restoration and Empowerment and Stendrick Zvorwadza and
Combined Harare Residents Association and National Election Reform
Agenda)
approached the High Court at Harare, on a certificate of urgency,
seeking the suspension of the statutory instrument pending the
determination of, among other issues, the constitutional validity of
section 27 of the Public Order and Security Act [Chapter 7.11]
(POSA). The other challenges mounted by the applicants against the
ban are not germane to the question before this Court.
The
respondents (Newbert
Saunyama and Commissioner General of Police and the Minister of Home
Affairs and the Attorney General of Zimbabwe)
opposed the application.
They
contended, in the main, that marches organised by the applicants in
the past had not been peaceful and had led to the destruction of
property. It was their position that the statutory instrument under
challenge was published for the safety and security of the nation and
was a fair and reasonable prohibition, balancing the rights of the
applicants to demonstrate against the rights of those citizens who
had lost their livelihood during the previous demonstrations.
On
23 September 2016, the High Court granted the provisional order
sought thereby suspending the operation of the ban. Part of the terms
of the final order sought by the applicants, to be confirmed on the
return day, was the constitutional validity of section 27 of the
Public Order and Security Act [Chapter 7.11] (POSA).
Ten
days prior to the handing down of the High Court judgment, on 13
September 2016 to be precise, the first respondent had published in
the Government Gazette and in one newspaper enjoying national
circulation, a notice proposing to ban, for a period of one month,
processions and demonstrations within the Harare Central Police
District. On 16 September, he had proceeded to publish the Notice and
Proclamation banning all processions and demonstrations in the Harare
Central Police District for a period of one month.
The
applicants returned to the High Court, on yet another certificate of
urgency, seeking the suspension of the Notice and Proclamation and
now also praying for the provisional order granted on 23 September
2016 to be set down on an urgent basis for its confirmation or
discharge.
Another
applicant, who is not a party to the application before this Court,
also approached the court separately but similarly challenging the
Notice and Proclamation and seeking similar relief.
Both
applications were opposed.
The
hearings of the two applications and the return day of the
provisional order granted on 23 September 2016 were consolidated. At
the hearing of the consolidated matters, the High Court, firstly,
considered whether or not section 27 of
the Public Order and Security Act [Chapter 7.11] (POSA)
was constitutional, which it found to be, before proceeding to uphold
the validity of the Notice and Proclamation. As a consequence, it
dismissed the applications.
The
applicants noted an appeal to the Supreme Court against the dismissal
of the applications. During the hearing of the appeal, the Supreme
Court referred to this Court the question I have set out above.
Against
this factual backdrop, I will proceed to answer the question referred
to this Court by the Supreme Court. In answering the question, I will
confine myself to an analysis of the rights or freedoms that were
limited by the first respondent using the powers granted to him by
section 27 of
the Public Order and Security Act [Chapter 7.11] (POSA).
I do so notwithstanding that counsel for the applicants has made
broad submissions impugning the limitation in section 27 of POSA
generally and against a number of other fundamental rights and
freedoms enshrined in the Constitution.
THE
CONSTITUTIONAL PROVISION
The
fundamental rights whose enjoyment was limited by the first
respondent are the freedom to demonstrate and to petition. These
rights are enshrined in section 59 of the Constitution in very
precise and concise terms as follows:
“59
Freedom to demonstrate and petition Every person has the right to
demonstrate and to present petitions but these rights must be
exercised peacefully.”
Quite
obviously, the rights that are guaranteed by the Constitution in
section 59 are the right to demonstrate and the right to present
petitions. Noteworthy, however, is that in the same provision that it
enshrines these two rights, the Constitution also admonishes that the
rights must be exercised peacefully.
I
venture to hold that by the very manner in which the rights and the
admonition are given not only in the same provision but literally in
the same breath, both the rights and the admonition must be given
equal primacy. In other words, the rights and the admonition must be
placed on an equal footing and must be read together as giving the
complete content of the rights. Taking this approach, the rights
enshrined in section 59 of the Constitution then, in simple terms,
become the right to demonstrate peacefully and the right to present
petitions peacefully.
The
approach I have taken to read the rights and the admonition together
and as one is to be contrasted with an alternative approach where I
could have given the rights supremacy over the admonition. Under such
an approach, the rights would have been read separately with the
admonition acting as a limitation, presumably an in-built one.
Taking
the second approach would have resulted, among other things, in
venerating the rights without qualification, and, prima facie,
venerating even violent demonstrations and the violent presentation
of petitions. It would have also resulted, as indicated above, in
subjecting the rights, firstly, to an in-built limitation, and,
thereafter, to the general limitation provided for in section 86(2)
of the Constitution.
I
have shied away from adopting the alternative approach as, in my
view, and, in the main, one cannot imagine a law that would
countenance the holding of violent demonstrations and the violent
presentation of petitions as protected rights. Violence intrinsically
has the effect of violating other persons' rights, either in their
liberty, bodily integrity or in their property.
The
enjoyment of fundamental rights and freedoms is universally subject
to one general rule. The rule is that the fundamental rights and
freedoms granted to every person must always be exercised with due
regard for the rights and freedoms of other persons. This Rule, which
has been part of our constitutional jurisprudence for decades, has
been entrenched in section 86(1) of our Constitution.
It
therefore presents itself clearly to me that to grant an unqualified
right to demonstrate and petition, thereby, on the face of it,
constitutionally allowing for violent demonstrations and petitions,
would be inimical to many of the rights enshrined in the
Constitution. No Constitution,
properly constructed, can be read as granting a right or freedom that
clearly affronts the rights and freedoms of others. Ours is no
exception.
It
is on this basis that I hold that the rights granted by section 59 of
the Constitution, and the accompanying admonition to exercise such
rights peacefully, must be read together as forming the contents of
the rights.
An
important consequence flows from reading the rights and admonition in
section 59 as one. It is this. The rights granted and guaranteed by
the section are the right to demonstrate and the right to petition
peacefully. In other words, the rights are protectable only when
exercised peacefully. Consequently, where the demonstration or
petition is violent, the conduct of the demonstrators or petitioners
loses the protection of the Constitution and becomes subject to the
provisions of general law.
THE
CONTENT OF THE RIGHTS
Accepting,
as I do, that the rights that are protected under section 59 are the
right to demonstrate peacefully and the right to peacefully present a
petition, one issue that has exercised my mind is whether it is then
necessary to further limit the rights.
In
view of the position that has been taken by the respondents in this
matter, this issue is largely an academic and idle question that does
not require an answer for the purposes of this judgment. It was never
the contention of the respondents that the measures taken by the
first respondent were in response to peaceful demonstrations. To the
contrary, the papers filed in the High Court, in opposition to all
the applications, recalled and emphasised the violence that had
accompanied the earlier demonstrations by some of the applicants as a
basis for imposing the ban. Thus, in the collective view of the
respondents, the first respondent was responding to the past violent
demonstrations by imposing a ban on all future demonstrations for a
period of one month.
At
no stage did the respondents contend that section 27 of
the Public Order and Security Act [Chapter 7.11] (POSA)
can be invoked to prohibit peaceful demonstrations and peaceful
presentation of petitions.
That
issue aside, the right to demonstrate and to present petitions was
recognised by the High Court as one of the rights that form the
foundation of a democratic State.
I
cannot agree more.
I
am also in full agreement with the observation of the High Court that
the attainment of the right to demonstrate and to present petitions
was among those civil liberties for which the war of liberation in
this country was waged and that these two rights are included in the
fundamental rights referred to in the preamble to the Constitution.
To
these observations that are peculiar to this jurisdiction, as
observed by the High Court, I may add on a general note that protests
and mass demonstrations remain one of the most vivid ways of the
public coming together to express an opinion in support of or in
opposition to a position. Whilst protests and public demonstrations
are largely regarded as a means of political engagement, not all
protests and mass demonstrations are for political purposes. One can
take judicial notice of, in the recent past, a number of public
demonstrations that were not political but were on such cross-cutting
issues as the environment, and/or the rights of women and children.
Long after the demonstrations, and long after the faces of the
demonstrators are forgotten, the messages and the purposes of the
demonstrations remain as a reminder of public outrage at, or
condemnation or support of an issue or policy.
Clearly,
the right to demonstrate creates space for individuals to coalesce
around an issue and speak with a voice that is louder than the
individual voices of the demonstrators.
As
is intended, demonstrations bring visibility to issues of public
concern more vividly than individually communicated complaints or
compliments to public authorities. Demonstrations have thus become an
acceptable platform of public engagement and a medium of
communication on issues of a public nature in open societies based on
justice and freedom.
THE
INFRINGEMENT
It
is beyond dispute that section 27 of
the Public Order and Security Act [Chapter 7.11] (POSA)
has the effect of infringing the rights granted by section 59 of the
Constitution. The High Court correctly found so. One would venture to
suggest that section 27 of
the Public Order and Security Act [Chapter 7.11] (POSA)
provides a classic example of a law whose effect infringes the
fundamental rights in issue in this matter.
The
test to determine whether a law infringes a fundamental right was
laid out by GUBBAY CJ in In re: Munhumeso and
Ors 1994 ZLR 49 (S)…, as follows:
“The
test in determining whether an enactment infringes a fundamental
freedom is to examine its effect and not its object or subject
matter. If the effect of the impugned law is to abridge a fundamental
freedom, its object or subject matter will be irrelevant.”…,.
Clearly,
the effect of section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA) is
to give wide discretion to a regulating authority to abridge the two
rights. He or she can impose a blanket ban for up to one month if he
or she believes, on reasonable grounds, that he will not be able to
prevent violence from breaking out.
During
the currency of the ban, the two rights are completely negated. In my
view, it matters not that the ban may be imposed only in relation to
a class of demonstrations. The effect remains the same in relation to
that class of demonstrations. They are all banned. This is regardless
of the purpose, size or organisation of the demonstration. The ban
has a dragnet effect and like most dragnets, it catches the big and
the small, the innocent and the guilty….,.
Having
come to the inescapable conclusion that section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
infringes the rights guaranteed under section 59 of the Constitution,
the next inquiry to make is whether the section can be saved under
section 86(2) of the Constitution or must be declared
constitutionally invalid….,.
ANALYSIS
Having
found that section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
infringes the fundamental rights granted by section 59 of the
Constitution…, the ultimate test…, is to establish whether or not
section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
can be saved by section 86(2) of the Constitution.
Section
86(2) of the Constitution provides:
“86
Limitations of rights and freedoms
(1)…,.
(2)
The fundamental rights and freedoms set out in this chapter may be
limited 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 including:
(a)
The nature of the right or freedom concerned;
(b)
The purpose of the limitation, in particular, whether it is necessary
in the interests of defence, public safety, public order, public
morality, public health, regional or town planning or the general
public interest.
(c)
The nature or the extent of the limitation;
(d)
The need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
The relationship between the limitation and its purpose, in
particular, whether it imposes greater restrictions on the right or
freedom concerned than are necessary to achieve its purpose; and
(f)
Whether there are any less restrictive means of achieving the purpose
of the limitation.”
It
has been urged upon the court, by counsel for the applicants, that in
considering whether section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
can be saved under this section, the court must make a sequential
inquiry, going through all the factors that are listed in the section
seriatim.
While
this may be a logical and convenient manner of proceeding, I do not
believe that the law directs the court to march its thought processes
in this regimented manner.
Clearly,
the law directs the court to test the infringing law under four
specific heads. These are whether such a law is fair, reasonable,
necessary and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom. In testing the
infringing law against these specific yardsticks, the court is
enjoined to take into account all relevant factors including the
factors spelt out in the section.
I
would therefore venture to suggest that section 86(2) of the
Constitution simply gives the court an array of some of the factors
to take into account before it comes up with what is essentially a
value judgment. The list given is not exhaustive as the law enjoins
the court to take into account all relevant factors including the
ones that it spells out. Thus, the court must be holistic both in its
approach and in its finding.
I
now turn to assess the limitation under the four specific heads
mentioned in section 86(2).
IS
SECTION 27 OF THE PUBLIC ORDER AND SECURITY ACT [CHAPTER 7:11] (POSA)
FAIR, REASONABLE, NECESSARY AND JUSTIFIABLE IN A DEMOCRATIC SOCIETY
BASED ON OPENNESS, JUSTICE, HUMAN DIGNITY, EQUALITY AND FREEDOM?
As
stated above, section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
grants wide power to the regulating authority to ban all or a class
of public demonstrations for a period lasting up to one month. The
ban imposed is blanket in nature and has a dragnet effect. During the
currency of the ban, the rights to demonstrate and to petition
peacefully are completely nullified. This includes demonstrations
already planned at the time the ban is imposed and those that are yet
to be planned. This also includes mass demonstrations and small
demonstrations. It includes demonstrations of all sizes and for
whatever purpose without discrimination.
Like
a blanket or a dragnet, it covers or catches them all.
To
the extent that the ban does not discriminate between known and yet
to be planned demonstrations, the limitation in section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA) has
the effect of denying the rights in advance and condemning all
demonstrations and petitions before their purpose or nature is known.
It does not leave scope for limiting each demonstration according to
its circumstances and only prohibiting those that deserve to be
prohibited while allowing those that do not offend against some
objective criteria set by the regulating authority to proceed.
The
limitation in section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
stereotypes all demonstrations during the period of the ban and
condemns them as being unworthy of protection.
Stereotyping
is a manifestation of bias without any reasonable basis for that
bias.
To
the extent that the limitation in section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
stereotypes all demonstrations during the period of the ban, it loses
impartiality and becomes not only unfair but irrational.
Counsel
for the respondents conceded that the limitation in section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA) is
excessive and is disproportionate to the purpose for which it is
intended.
This
concession was well made.
The
excessive nature of the limitation has the effect that MALABA DCJ
commented on in Chimakure and Others v AG 2013 (2) ZLR 466 (S), of
increasing the sphere of Government control over the exercise of the
right whilst decreasing the scope of the enjoyment of the right.
In
conceding that the limitation in section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA) is
excessive, counsel was, in essence, conceding that the limitation
exceeded its purpose, and, to that extent, becomes an unreasonable
reaction to a situation that can be managed by other and less
restrictive means.
In
its judgment, the High Court also correctly found that the limitation
in section 27 of POSA has the effect of imposing greater restrictions
than are necessary to achieve its purpose. The High Court, however,
felt that the law could be saved as its effect in this regard is
limited “in terms of its duration and the restricted geographical
area in which the ban may be imposed.”
Once
having found that the provisions of section 27 of
the Public Order and Security Act [Chapter 7:11] (POSA)
have the effect of imposing greater restrictions than are necessary
to achieve their purpose, the High Court ought to have found the
provision unconstitutional without qualification. It is the blanket
or dragnet effect of the ban that is permissible under section 27 of
POSA that taints the whole provision. It matters not that the ban may
be limited both geographically and in terms of time - a blanket or
dragnet ban is neither fair, reasonable nor necessary.
It
is irrational.
Whilst
this is not germane to the answering of the question before the
court, the concession by counsel and the finding by the High Court
that the limitation was excessive and therefore not necessary,
suggests that the respondents ought to have come up with other less
restrictive measures to ensure that the right to demonstrate and
petition peacefully was fully given effect to in circumstances where
the exercise of these rights did not violate the rights of others.
As
discussed above, the respondents contend that the purpose of the
limitation was to assist the first respondent to police and contain
violent demonstrations in the future, based on previous experiences.
To
this extent, the limitation was, in my view, misplaced.
The
right that the Constitution guarantees is the right to demonstrate
and to present petitions peacefully. The limitation was therefore not
only inappropriate but unnecessary to contain and police peaceful
demonstrations and petitions.
Having
found that the limitation in section 27 of
the Public Order and Security Act [Chapter 7:11]
is not fair, reasonable or necessary, I have not been able to find
any other basis upon which it can be justified.
In
addition to failing to pass the test on fairness, necessity, and
reasonableness, there is another feature of section 27 of
the Public Order and Security Act [Chapter 7:11]
that I find disturbing.
It
has no time frame or limitation as to the number of times the
regulating authority can invoke the powers granted to him or her
under the section. Thus, a despotic regulating authority could
lawfully invoke these powers without end. This could be achieved by
publishing notices prohibiting demonstrations back to back as long as
each time the period of the ban is for one month or less. It thus has
the potential of negating or nullifying the rights not only
completely but perpetually.
DISPOSITION
On
the basis of the foregoing, it is my finding that section 27 of
the Public Order and Security Act [Chapter 7:11]
is unconstitutional.
Section
175(6)(b) permits a court declaring a law to be inconsistent with the
Constitution to suspend the declaration of invalidity to allow the
competent authority to correct the defect. It is just and equitable,
in my view, that the second (Commissioner
General of Police)
and third (the
Minister of Home Affairs)
respondents be allowed time to attend to the defects in section 27 of
the Public Order and Security Act [Chapter 7:11]
if they are so inclined….,.
In
the result, I make the following order:
1.
The question referred to this Court by the Supreme Court is answered
as follows:
“Section
27 of the Public Order and Security Act [Chapter 7.11] is
unconstitutional.”
2.
The declaration of constitutional invalidity of section 27 of the
Public Order and Security Act is suspended for 6 months from the date
of this judgment.
3.
The matter is remitted to the Supreme Court for the determination of
the appeal.
