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 section 25(5) of the Public Order and
Security Act [Chapter 11:17]….,.
The main
ground of appeal, out of a possible four grounds put forward by the appellant,
was that the ...
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 section 25(5) of the Public Order and
Security Act [Chapter 11:17]….,.
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 section 25(5) of the Public Order
and Security Act [Chapter 11:17].
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. The
appellant, in the presence and hearing of the Officer-in-Charge and his
subordinates, called the said Freddie Dziwande 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 Public Order and Security Act [Chapter 11:17] 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 section 25 of
the Public Order and Security Act [Chapter 11:17] 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 the appellant as the convener of the meeting of 24
November 2012.
This
much is clear from the wording of section 25(5) of the Public Order and
Security Act [Chapter 11:17] when read with section 2 of the Public Order and
Security Act [Chapter 11:17]. By section 2 of the Public Order and Security Act
[Chapter 11:17], 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 section 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, the 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 the appellant had known that the police had not
been notified of this meeting, her addressing it did not constitute an offence
in terms of the Public Order and Security Act [Chapter 11:17]. She therefore
would not have been liable for prosecution.
As
for Freddie Dziwande, the court found that there was insufficient evidence
against him hence his acquittal. That acquittal was proper.
