MAKARAU JCC:
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
FACTUAL BACKGROUND
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 s 27 of
POSA which in subs (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 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 s 27 of POSA. The other challenges mounted
by the applicants against the ban are not germane to the question
before this Court.
The
respondents 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 s 27 of 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 s 27 of 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 s
27 of POSA. I do so notwithstanding that counsel for the applicants
has made broad submissions impugning the limitation in s 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 s 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 s 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 s 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 s 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 s 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
s 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 s 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 s 27 of 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 s 27 of POSA has the effect of infringing the
rights granted by s 59 of the Constitution. The High Court correctly
found so. One would venture to suggest that s 27 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 Mhunhumeso (supra) at page 62F 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.” (The emphasis is not mine).
Clearly,
the effect of s 27 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. I shall revert to this point
in greater detail below.
Having
come to the inescapable conclusion that s 27 of POSA infringes the
rights guaranteed under s 59 of the Constitution, the next inquiry to
make is whether the section can be saved under s 86 (2) of the
Constitution or must be declared constitutionally invalid.
The
approach of the court
Before
I proceed to consider whether or not s 27 of POSA can be saved under
s 86 (2) of the Constitution, I will briefly discuss the relationship
between the general approach that a court takes in considering the
constitutional validity of a challenged piece of legislation and the
specific test that the court must apply as directed in s 86 (2) of
the Constitution.
I
am detained in this regard as it appears that there may be some
confusion as to whether or not the general approach that was laid out
in case law prior to the enactment of the Constitution remains
applicable in light of the express provisions of s 86 (2) of the
Constitution.
Counsel
for the applicants argues that s 86 (2) has codified the approach
that the court must take in construing a limitation and suggests that
the court should look no further. I do not agree.
I
am inclined towards the broad view expressed by PATEL JA in James v
Zimbabwe Electoral Commission and Others 2013 (2) ZLR 659 (CC),
wherein at p 666E he held that:
“Section
86 (2) of the Constitution is essentially a restatement of the
criteria for permissible derogation from constitutional rights as
enunciated by the Supreme Court in Nyambirai v National Social
Security Authority & Another 1995 (2) ZLR 1 (S))”.
In
Nyambirai v NSSA (supra), the court, relying on the Canadian case of
R v Oakes (1986) 19 CRR 308, had held that:
“In
effect the court will consider three criteria in determining whether
or not a limitation is permissible in the sense of not being shown to
be arbitrary or excessive. It will ask itself whether:
(i)
The legislative objective is sufficiently important to justify
limiting a fundamental right; (ii) The measures designed to meet the
legislative objective are rationally connected to it; and (iii) The
means used impair the right or freedom are no more than is necessary
to accomplish the objective.”
I
read the view by PATEL JA as holding that the provisions of s 86(2)
of the Constitution and the general approach to establishing
permissible limitations to constitutional rights are complementary
and not mutually exclusive and that both are applicable.
Thus,
the general approach that has been discussed in cases such as In re
Mhunumeso and Others 1994 (1) ZLR 49 (S), Nyambirai v NSSA (supra),
Retrofit (Private) Limited v PTC and Anor 1995(2) ZLR 199 and
Chimakure and Others v AG 2013 (2) ZLR 466 (S) which were decided
before the promulgation of the Constitution remains valid as
providing general guiding principles while s 86 (2) sets out in
detail the factors that a court must take into account in determining
whether or not a limitation of a fundamental right is constitutional.
I
so hold.
The
general approach is based on two principles.
The
first principle is a presumption in favour of constitutionality. The
presumption holds that where a piece of legislation is capable of two
meanings, one falling within and the other outside the provisions of
the Constitution, the court must uphold the one that falls within.
The
correct approach of presuming constitutionality is to avoid
interpreting the Constitution in a restricted manner in order to
accommodate the challenged legislation. Instead, after properly
interpreting the Constitution, the court then examines the challenged
legislation to establish whether it fits into the framework of the
Constitution.
This
approach gives the Constitution its rightful place, one of primacy
over the challenged legislation. The Constitution is properly
interpreted first to get its true meaning. Only thereafter is the
challenged legislation held against the properly constructed
provision of the Constitution to test its validity. In other words,
one does not stretch the Constitution to cover the challenged
legislation but instead, one assesses the challenged law, and tries
to fit it like a jigsaw puzzle piece into the big picture which is
the Constitution. If it does not fit, it must be thrown away.
(See
Zimbabwe Township Development (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S)).
The
second principle entails the adoption of a broad approach where any
derogation from guaranteed rights and freedoms is given a very narrow
and strict construction to avoid the diminishing or the dilution of
the rights or freedoms.
In
this regard, the court venerates the fundamental right or freedom as
primary while regarding the limitation as secondary.
This
second principle was adverted to by MALABA DCJ (as he then was) in
Chimakure and Others v AG (supra), where he was discussing the
acceptable limitations to the freedom of expression. As he rightly
observed at p491D-E:
“It
would not be an interference (limitation) within the meaning of the
Constitution if the measure adopted by Government amounts to
authorisation of the destruction or abrogation of the right to
freedom of expression itself. To control the manner of exercising a
right should not Signify its denial or invalidation.” (The
emphasis and insertion of the word “limitation” are mine).
He
proceeded at page 494H to sum up the approach that the court should
take and which approach I intend to take in this matter, as follows:
“In
the determination of the issues raised, it is ever so important to
bear in mind that, every new legislative restriction on the exercise
of the right to freedom of expression, has the effect of reducing
the existing realm of freedom of expression whilst adding to and
expanding the area of governmental control of the exercise of the
fundamental right. It is the duty of the court as guardian of the
constitution and fundamental rights and freedoms to ensure that only
truly deserving cases are added to the category of permissible
legislative restrictions of the exercise of the right…,.”
ANALYSIS
Having
found that s 27 of POSA infringes the fundamental rights granted by s
59 of the Constitution, and being guided by the general approach
described above, the ultimate test as stated above, is to establish
whether or not s 27 can be saved by s 86 (2) of the Constitution.
Section
86 (2) 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 applicant that in
considering whether s 27 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 s 86(2) 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 s 86(2).
IS
S 27 OF POSA FAIR, REASONABLE, NECESSARY AND JUSTIFIABLE IN A
DEMOCRATIC SOCIETY BASED ON OPENNESS, JUSTICE, HUMAN DIGNITY,
EQUALITY AND FREEDOM?
As
stated above, s 27 of 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 s 27 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 s 27 of 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 s 27 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 s 27 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 the Chimakure case 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 s 27 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 s 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 s 27 of 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 s 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 s 27 of POSA 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 s 27 of POSA 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 s 27 of the Public
Order and Security Act [Chapter 11:17] 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 and third respondents be allowed
time to attend to the defects in s 27 of the Public Order and
Security Act if they are so inclined.
Regarding
costs, while the declaration that I make has the effect of upholding
the contentions of the applicants in the High Court, counsel for the
respondent did concede that the challenged law was excessive in its
effect. Further, the answer to the question referred to this Court by
the Supreme Court is an important one to all the parties before this
Court.
An
order that each party bears its own costs will in my view be
appropriate.
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 s 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.
4.
Each party shall bear its own costs
MALABA CJ: I agree
GWAUNZA DCJ: I
agree
GARWE JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I
agree
PATEL JCC: I agree
GUVAVA JCC: I agree
BHUNU JCC: I agree
Tendai Biti Law,
applicants' legal practitioners
Civil Division of
The Attorney-General's Office, respondents' legal practitioners
