HUNGWE J: After hearing counsel in argument we
allowed the appeal and indicated that our reasons for allowing the appeal will
follow. These are they.
The appellant was convicted of contravening s 25 (5) of the Public Order and
Security Act, [Cap 11:17], (“the Act”) or (“POSA”). She was sentenced
to a fine of US$200, 00 or in default of payment four months imprisonment. In
addition a further three months were wholly suspended for five years on
condition the appellant did not commit any offence involving contravening any
section of the Act for which she is sentenced to imprisonment “without any
option.”
The main ground of appeal, out of a possible four grounds put forward by the
appellant, was that the trial magistrate erred in holding that the appellant
was the convener of the meeting as contemplated in s 25(5) of the Act.
The appellant was convicted on the basis of the following findings of fact.
She, at the time, was a member of parliament for a constituency in Chimanimani
for the Movement for Democratic Change (“MDC-T”). On 24 November 2012 she
attended a meeting convened in a rural village within her constituency. When a
police patrol unit led by the officer in charge of Nyanyadzi police station,
arrived at this meeting, the appellant was addressing the meeting. The
officer-in-charge, who holds the rank of inspector, approached the gathering.
He heard her chant political slogans. Some of the people gathered wore their
political party regalia. This was a political meeting for which there had not
been the requisite notice filed with Nyanyadzi police station as required by
law. The police inspector called upon the appellant and enquired with her
whether the meeting she was addressing had been sanctioned by the police. The
appellant intimated to the officer-in-charge that she believed that one Freddie
Dziwande, who was later to be her co-accused, had made the requisite
application to the regulating authority. Appellant, in the presence and hearing
of the officer-in-charge and his subordinates, called the said Freddie on the
latter's mobile number. Freddie Dziwande advised the appellant that he had
forgotten to notify the police. Three other police details who were in the
officer-in-charge's party testified to this effect. In their evidence which was
not seriously disputed, the appellant was addressing a gathering which had not
been sanctioned by the regulating authorities. They all confirm that she had
called one Freddie Dziwande in their presence who advised her that he had
forgotten to notify the police.
Section 25(5) of the POSA provides thus:
“25 Notice of processions, public demonstrations
and public meetings
(1) The convener shall not later than—
(a) seven days before
the date on which a procession or public demonstration is to be held, give
notice of the procession or public demonstration in writing signed by him or
her to the regulating authority for the district in which the procession or
public demonstration is to be held:
(b) five days before
the date on which a public meeting is to be held, give notice of the public
meeting in writing signed by him or her to the regulating authority for the
district in which the public meeting is to be held:
Provided that—
(i) if the convener is not able
to reduce a proposed convening notice to writing a regulating authority shall
at his or her request do it for him or her;
(ii) during an election period
the period of notice referred to in paragraph (b) shall be three
days.
(2) The convening notice shall contain at least the
following information—
(a) the name, address
and telephone and facsimile numbers, if any, of the convener and his or her
deputy;
(b) the name of the
organisation on whose behalf the gathering is convened or, if it is not so
convened, a statement that it is convened by the convener;
(c) the purpose of the gathering;
(d) the time, duration and date of the gathering;
(e) the place where the gathering is to be held;
(f) the anticipated number of participants;
(g) the proposed number
and, where possible, the names of the marshals who will be appointed by the
convener, and how the marshals will be distinguished from the other
participants in the gathering;
(h) in the case of a procession or public
demonstration—
(i) the exact and complete route
of the procession or public demonstration;
(ii) the time when and the
place at which participants in the procession or public demonstration are to
assemble, and the time when and the place from which the procession or public
demonstration is to commence;
(iii) the time when and the
place where the procession or public demonstration is to end and the
participants are to disperse;
(iv) the manner in which the
participants will be transported to the place of assembly and from the point of
dispersal;
(v) the number and types of
vehicles, if any, which are to form part of the procession;
(vi) if a petition or any other
document is to be handed over to any person, the place where and the person to
whom it is to be handed over.
(3) If a gathering is postponed or delayed, the convener
shall forthwith notify the regulating authority thereof, and section 26 shall,
with such changes as may be necessary, apply to such postponed or delayed
gathering as it applies to gatherings that are not postponed or delayed.
(4) If a gathering is cancelled or called off, the convener
shall forthwith notify the regulating authority thereof and the notice given in
terms of subsection (1) shall lapse.
(5) Any person who knowingly fails to give notice of a
gathering in terms of this section, shall be guilty of an offence and liable to
a fine not exceeding level twelve or to imprisonment for a period not exceeding
one year or to both such fine and such imprisonment.
[Section substituted by section
4 of Act 18 of 2007]”
It will be seen from the above that, for example, a
convener who fails to give the requisite five days notice of a public gathering
is liable to a fine not exceeding level twelve or to imprisonment for a period
not exceeding one year. Only the organizer or convener of a public gathering is
guilty of an offence where, as here, the convener fails to give notice of a
public gathering, notwithstanding that those attending may be aware that no
notice has been given. Nothing renders a meeting called without notice in terms
of s 25 unlawful. In order to secure a conviction the State would have to prove
one of two things; (1) that the appellant of her own accord convened a
gathering of people at the meeting in issue; or, (2) that the MDC-T appointed
appellant as the convener of the meeting of 24 November 2012. This much is
clear from the wording of s 25(5) when read with s 2 of the Act. By s 2 the
“convener” is defined as;
(a) Any person who, on his own
accord , convenes a gathering; and
(b) In relation to any
organisation, any person appointed by such organisation in terms of s 23(1).
The learned trial magistrate at the beginning of his
judgment correctly framed the issues relevant to the matter before him when he
stated that the court had to determine first whether the appellant was the
convener, and, if she was, whether the meeting fell into the category of
meetings to which certain exemptions applied. Unfortunately, later in the
judgment, the learned trial magistrate reformulated the issues to be whether
the meeting was a political meeting and whether the appellant was the convener
of that meeting. The issue, in my respectful view, remained whether the appellant
was the convener of that meeting since, if she was, then she was obliged to
have notified the police prior to convening the meeting. The record reflects
that upon being quizzed by the police on whether there was notification to the
regulating authority filed, appellant expressed her belief that the person who
had convened the meeting had done the necessary preparatory work. This ought to
have indicated to the investigating officer that the real issue was whether the
appellant was the convener. This was never investigated as the police proceeded
on the assumption that the appellant was the convener because she was
addressing the meeting. The court seems to have laboured under the same belief
that since she was addressing the meeting, she was the convener. Yet the
evidence was that she had called one Freddie Dziwande to ascertain whether the
processes had been complied with. As I have demonstrated above, even if
appellant had known that police had not been notified of this meeting, her
addressing it did not constitute an offence in terms of the Act. She therefore
would not have been liable for prosecution. As for Freddie, the court found
that there was insufficient evidence against him hence his acquittal. That
acquittal was proper.
At the outset, the appellant excerpted to the charge as
disclosing no offence. In dismissing the subsequent application to amend the
charge brought by the State, the learned trial magistrate took the view that
there was no need to amend the charge. In the learned trial magistrate's
reasoning, the use of the word “sanction” in the charge instead of the word
“notify” as would have been required by the Act was just a matter of
terminology or semantics. In the view of the court, there was no defect in the
charge as it stood and to which the appellant had pleaded.
Quite clearly the learned trial magistrate missed the point
raised in the application to amend. The averments in the charge related to lack
of authorisation to hold a political meeting rather than failure to notify the
regulating authority. The learned trial magistrate's reasoning reflect a
serious misconception of the issues before him in the trial. Had he taken time
to reflect on the proposed amendment sought at that early stage he most likely
would have realised what the real issue in the trial was. He would have
proceeded to deal with that issue more competently than he did. Whatever powers
the police wielded prior to the 2007 amendment to the principal Act, the power
to sanction a political gathering was no longer one of the powers which police
had on 24 November 2012. Consequently, if political parties did not require
permission from the police to hold their meetings, it was vexatious, when
charging an accused for contravening s 25(5) of the Act, to aver in the charge that
the accused “unlawfully and intentionally held an unsanctioned political
meeting.” Section 25(5) of the Act does not create such an offence, but that of
failure to notify the regulating authority. A convener of such a meeting would
be criminally liable for this offence. As a result, the trial was aimed at
establishing whether the appellant addressed a meeting for which no police
authority had been granted, instead of whether the appellant had convened a
political gathering or meeting without notifying the police. The key word was
“convene.” The learned trial magistrate fell into error when he found that the
appellant had convened the meeting since no evidence was led to establish this
as fact. The fact that she had attended and addressed the meeting did not
elevate her to being the convener. The State was obliged to prove that she had
convened this meeting in order to secure a conviction. It did not secure such
evidence and as such her appeal ought to succeed.
In the result her conviction is set aside and the sentence
quashed. The judgment in the court a quo is substituted with the
following:
“The accused is found not guilty and acquitted.”
HUNGWE J: ………………………………….
BERE J agrees…………………………………..
Zimbabwe Lawyers for Human Rights,appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
