By A.K Malunga: LEAD National Secretary for Legal and Policy Formulation
THE BIRTH OF POSA
Before the enactment of POSA1 in the year 2000, and prior to the demise of LOMA2 in 1993, the right to picketing was regulated by common law. During this period, the police wantonly resorted to the unlawful use of brute force to quell demonstrations or processions. However, pressure from civic society, among other factors, arm-twisted the government into seeking a way to sanitize the actions of the police in an effort to conjure a façade of constitutionality. Fortunately, the public could not be fooled and objections against the diabolically repressive nature of the Act remained a thorn in the flesh of all pro-democratic movements.
ENTER THE NEW DISPENSATION: ALONG CAME MOPA
Towards the curtain-call of the year 2017, Zimbabwe woke up to a so-called New Dispensation. Along with it came a litany of new hopes and dreams of peace, democracy, prosperity and justice among other illusions. Sadly, these dreams also did not leave behind the nightmares in the form of POSA and POSA did not leave behind its draconian sibling, namely AIPPA3. There could be no democracy if POSA was still a part of the laws in the so-called New Dispensation. Peace and Justice could not prevail with POSA lurking in the shadows. The new government had to Act, and it decided to do away with POSA and usher in MOPA. From all this hullaballoo a new question arose:
1 Public Order & Security Act
2 Law & Order Maintenance Act
3 Access to Information & Protection Of Privacy Act
“Is MOPA any different from POSA or is it just but a mere renaming of the same child from CHIPO to SIPHO?”
RENAMING THE SAME CHILD
The differences between MOPA and POSA are so microscopic that if one could take the liberty to describe them allegorically, one would conclude that they are smaller than an ant’s beard. The obvious changes are apparently updates of names and titles: for example, “Commissioner of Police” has been changed to “Commissioner-General of Police” and “Police Force” to “Police Service”.
In terms of Section 1, namely, the Short Title, the Act has been re-christened and given a title that sounds more palliative than POSA. It gets an uber- democratic sounding title: “Maintenance Of Peace and Order Bill”. The name creates a misapprehension that peace and order currently exist in the country and that the new bill is just grease in the constantly rotating wheels of peace, order and justice. The title, “Public Order & Security Act” had a coarse texture and sounded more militant and drew images of a police state in one’s mind.
Clause 6 which regulates the appointment of responsible officers for public meetings is mere window-dressing. In terms of sub-section (1) thereof, persons who are appointed as organisers of public meetings are to be regarded as conveners for the purposes of Part II of the Bill. There is no discernible advantage emanating from the addition of these few words.
In a move towards contemporaneousness, Clause 7 which deals with the notice of gatherings has simply replaced “facsimile numbers” with “cellular phones” and “e-mails” as modes of correspondence recognized by the Bill. The obligation to give notice of public gatherings remains unchanged.
Consultations, etc., re holding of public gatherings are dealt with under section 8 of the Bill. In terms thereof a regulating authority (a senior police officer) is given three days to inform the convener of a demonstration whether or not permission to demonstrate has been granted. The only difference with the foregoing and section 26 of POSA is that the regulating authority could hold the exercise of its discretion ad infinitum. Another variance with section 26 of POSA is the addition of an unintelligible proviso to subsection . At the end of the day the clause is a clone of section 26 of POSA.
Convenors of a demonstration are inadvertently forced into a scenario where they have to give more than seven days’ notice to the regulating authority in case the regulating authority fears possible disorder and therefore has to invite the convenors to a consultative meeting at least seven days before the demonstration. Consequently, a consultative meeting cannot be held if the regulating authority has withheld its consent where the convenors have given the minimum seven days’ notice or less.
The temporary prohibition of public demonstrations which was enshrined in section 27 of POSA was outlawed by the High Court for being ultra-vires of the supreme law of the land has and not been included in the Bill.
A proverbial breath of fresh air is seen in Clause 14 of the Bill which no longer criminalizes a civilian’s failure to produce an identity document when asked by a police officer. The clause is less menacing and it gives a person seven (7) days to produce an identity document at a police station when one fails to produce one upon request by a police officer. Contrariwise, a law which permits the police to arbitrarily stop people and demand their identity documents is unconstitutional because it impedes on the right to freedom of movement. Section 14 of the Bill contains this provision.
Last but not least, section 18 of the Bill cures the constitutional malady in section 37 of POSA by taking away from the Minister of Defence the power to deploy troops to assist the police in quelling public unrest. It restores such power to the President. The section is now intra-vires of section 213 of the Constitution. Further, and in harmony with section 214 of the Constitution, President is indulged to inform Parliament within seven days after deploying the Defence Forces to restore public order.
It is apparent the POSA is very much alive albeit with a different name. MOPA is just as undemocratic as POSA. The amendments are tantamount to applying lipstick to a baboon. In my view, MOPA or POSA should have no space in a democratic narrative. The common law offences pertaining to incitement of violence sufficiently cover the needs of public order relating to freedom of expression. There is clearly a need to remove or substantially overhaul all POSA
and/or MOPA and all other repressive and undemocratic legislation interfering with freedom of assembly and freedom of speech.
There is also a pressing need for a return to impartial policing which will require a radical a change in the ethos of the police. The police force must become a force that performs its duties fairly and professionally. They must no longer apply or misapply the law so as to destroy the democratic right to freedom of assembly and speech.