The
applicant is the Movement for Democratic Change (MDC-T), a political
party led by Morgan Tsvangirai.
The
applicant is an opposition party with a substantial following in
Zimbabwe and with branches in all the provinces of the country. In
pursuit of its political objectives, the applicant is planning to
hold a peaceful demonstration or protest march on the 28th
of
May 2016 in Bulawayo. The planned demonstration is dubbed “March
against poverty and corruption.”
The stated objectives of this protest march are to bring to the fore
the applicant's position on the deteriorating socio-economic and
political conditions in the country through a peaceful demonstration.
Top on the priority of the issues of the planned peaceful
demonstration are the rampant and alarming levels of corruption,
escalating poverty, astronomical levels of unemployment, acute cash
shortage, poor service delivery amongst other pressing issues. The
applicant hopes that the planned protest march will jolt the
Government into action and attend to the various issues affecting the
general populace.
On
5th
of
May 2016, the applicant's Organizing Secretary for Bulawayo
Province, in recognition of the provisions of the Public Order and
Security Act [Chapter 11:17], extended the courtesy of informing the
first respondent of the planned peaceful demonstration/march/protest
in a letter worded in the following terms:-
“MDC-T
Bulawayo Province
41
Fort Street
Bulawayo
5
May 2016
The
Officer Commanding
ZRP
Bulawayo Central District
Ref:
INTENTION TO HOLD A PEACEFUL MARCH/PROTEST/DEMONSTRATION ON 28 MAY
2016
I
wish to notify your office of our intention to hold the above stated
programme on the date given above. We will be merely exercising our
right as provided for in the Constitution of Zimbabwe. Our protest
will merely concern issues of non-employment, deteriorating economic
conditions, political and social situation. We intend to bring these
to the attention of Government leadership.
The
proposed route for the march is as follows: Gathering point, CITY
HALL CAR PARK. The march will proceed along Robert Mugabe Way towards
10th
Avenue, turn into 10th
Avenue, proceed to Hebert Chitepo Street, pass through Mhlahlandlela
Complex, proceed along Basch Street towards Manor Hotel, pass and
proceed back into Hebert Chitepo through 9th
Avenue, proceed along Hebert Chitepo up to 6th
Avenue Extension, turn into 6th
Avenue going towards Lobengula Street, turn into Lobengula Street,
proceed up to Masotsha Ndlovu Avenue and the march will end at the
open space called King Lobengula Kraal along Masotsha Ndlovu Avenue.
Starting time approximately 10:00am and finish around 2:00pm.
Thank
you in advance for your usual co-operation.
Yours
sincerely
J.
Sithole
Organising
Secretary”
The
applicant's letter received prompt attention and response from the
first respondent on the same day. The response by the first
respondent is in the following terms:
“5
May 2016
Attention:
JAMES SITHOLE
RE:
NOTIFICATION OF INTENTION TO HOLD A MARCH/PROTEST/DEMONSTRATION ON
28/05/2016
This
office acknowledges receipt of your correspondence dated 5 May 2016
on the above captioned matter.
I
regret to inform you that this office has serious reservations on the
intended march/protest/demonstration
due to the fact that a similar march/protest/demonstration that you
conducted in the month of April 2016 in Harare was not peaceful.
Please
take note that there are numerous challenges facing our national
economy, making the environment not conducive for political
demonstrations of any form or character.
Your
intended demonstration will be infiltrated by bad elements
considering the number of participants. Our office cannot guarantee
the security of the participants.
As
a result of the above, I regret to advise you that your
march/protest/demonstration cannot be sanctioned by this office.
Thanking
you in advance for your usual co-operation.
Regulating
Authority
Bulawayo
Central”
The
applicant was evidently not satisfied with the response by the first
respondent, leading to the filing of this urgent application.
I
caused the application to be served upon all the respondents. I heard
the parties in chambers on 19th
May 2016 and granted the application in terms of the draft order. I
indicated that my full reasons would follow. These are my reasons for
granting the order sought.
Everyone
has the right to freedom of peaceful assembly. This is a right
closely linked to the right to freedom of expression. The right to
demonstrate provides a means for public expression and is one of the
foundations of a democratic society. The right applies to protest
marches, demonstrations, public and private meetings, “sit-ins”,
and “silent protests.” The right to demonstrate only applies to
peaceful gatherings and does not protect intentionally violent
protests. There will be interference with the right to demonstrate if
the authorities prevent a demonstration from going ahead; halt a
demonstration, take steps in advance of a demonstration in order to
disrupt it; or store personal information on people because of their
involvement in a demonstration.
The
right to demonstrate is enshrined in section 59 of the Constitution
of Zimbabwe (No.20 of 2013) which provides as follows:
“Freedom
to demonstrate and petition
Every
person has the right to demonstrate and to present petitions, but,
these rights must be exercised peacefully.”
In
my view, the right to demonstrate is clearly provided for under the
Constitution. The Constitutional provision is however unequivocal in
stating the circumstances under which the right to demonstrate is to
be enjoyed. The Constitution provides that the right to demonstrate
“must be exercised peacefully.”
The
first respondent opposed the application on essentially three
grounds. I shall proceed to consider each of them in turn.
(a)
A similar demonstration held in Harare in April 2016 was not peaceful
The
applicant contended that the demonstration in Harare was held under
different circumstances. The proposed march in Bulawayo is being
organised by the Bulawayo branch of the applicant. Steps had been
taken to prevent any form of violence by the deployment of
“marshalls” who shall have the role of ensuring that the
demonstration is not hijacked by unruly elements. The applicant also
expects the police to assist in the enforcement of law and order.
I
am not inclined to agree that the respondents have established that a
real threat exists if the demonstration were to be allowed. It is not
sufficient to merely allege that there is an apprehension that
violence may break out. For this court to curtail the right to
demonstrate, it must be established, on a preponderance of
probabilities, that there is a real likelihood that the
demonstration/march/protest will not be peaceful. The respondents
have expressed reservations regarding the safety of the participants
in the proposed demonstration. There are no cogent reasons, in my
view, given by the respondents to show that the proposed march will
not be held peacefully.
(b)
The environment is not conducive for political demonstrations of any
form or character
The
respondents contend that due to the numerous challenges facing our
national economy the environment is fluid and not conducive to any
demonstration.
It
may very well be true that at this stage in the political history of
the country there are several socio-economic challenges. The proposed
march is intended to bring to the attention of the authorities, the
problems surrounding acute cash shortages, high unemployment and
corruption. It is my view that the right to demonstrate is a right
guaranteed under the Constitution. That right can only be curtailed
if the demonstration/march/protest is likely to infringe on the
rights of other citizens. I find that the fact that the economy faces
numerous challenges is not, in itself, a sufficient ground to
restrict the right to demonstrate.
(c)
The
demonstration will be infiltrated by bad elements
The
respondents contend that the demonstration is likely going to be
infiltrated by “bad elements” who will cause chaos and infringe
on the rights of other citizens. The respondents asserted that they
could not guarantee the safety and security of the participants.
When
I drew the attention of the respondents that they have a duty to
ensure that the demonstration was conducted peacefully, the response
was that there was inadequate manpower and resources to provide
security. It seems to me that this excuse is a lame excuse. The
respondents have a mandate and duty to protect members of the public.
In terms of section 219 of the Constitution of Zimbabwe the police
have, amongst other duties, the responsibility of maintaining law and
order and protecting and securing the lives and property of the
people.
I
am not persuaded, therefore, that the respondents have any legal
basis for denying the applicant its right to engage in a peaceful
demonstration.
In
re: Munhumeso
& Others
1994 (1) ZLR 49 (S), the Supreme Court stated as follows…,:
“The
importance of attaching to the exercise of the right to freedom of
expression and freedom of assembly must never be underestimated. They
lie at the foundation of a democratic society and are one of the
basic conditions for progress and for the development of every man.”
I
have no doubt that the right to demonstrate and to participate in a
protest march is a right recognized in the Constitution - subject to
certain limitations. The right to demonstrate may be limited where
this is:
(a)
Prescribed by law.
(b)
Necessary and proportionate.
(c)
In pursuit of a legitimate aim; namely,
(i)
In the interests of national security and public safety.
(ii)
Necessary for the prevention of disorder or crime.
(iii)
In protection of health or morals or the protection of the rights and
freedom of others.
I
observe that the applicant did give the requisite notice of the
intention to demonstrate. The requirement to give notice of plans to
stage an assembly or peaceful protest in advance will not necessarily
breach the right to protest as long as the notification does not
become a hidden obstacle to exercising the freedom of assembly.
I
conclude, therefore, that the respondent's refusal to sanction the
demonstration breached the applicant's rights to free expression
and protest. As there was no imminent threat to a breach of peace,
the respondent's actions, in limiting the right to protest, was not
done in accordance with the law and the Constitution. The decision by
the respondent is an arbitrary, indiscriminate and disproportionate
restriction on the applicant's right to protest as there is no
reason to view the applicant's proposed march as anything other
than a peaceful demonstration.
It
ought to be noted that the freedom to take part in a peaceful
assembly was of such importance that the right could not be
restricted, in any way, on flimsy grounds. A fair balance has to be
struck on the one hand, the general interest requiring the protection
of public safety, and, on the other, the applicant's freedom to
demonstrate.
In
the result, the application is granted in terms of the draft order.
