NO BAN ON PUBLIC GATHERINGS

Senior Assistant Commissioner Charity Charamba 

This blogpost demystifies the claim of a legal ban on all public gatherings in Zimbabwe. It concludes that the Zimbabwe Republic Police (ZRP) is reverting to its time-honoured practice of exercising authority outside the scope of law.  

On 11 September 2018, Zimbabwe’s Health Minister was quoted saying a state of emergency was being declared in Harare to contain the outbreaks of cholera and typhoid. The reaction from the ZRP was swift. It issued a press statement claiming that the state of emergency meant the cholera outbreak was also “a threat to human security” and on that basis, they would not allow any public gatherings. This was interpreted in many quarters as a ban on all public gatherings. On this ostensible basis, the ZRP banned the Movement for Democratic Change (MDC)’s plans to ‘inaugurate’ their presidential candidate, though the MDC obliged and opted for a postponement. Further, the ZRP refused to allow the MDC’s plans to celebrate their anniversary on 29 September 2018, repeating the claim that “the government ban on public gatherings in Harare following the outbreak of cholera is still standing.”

The effort to contain endemic water-borne diseases is obviously commendable. Yet is it often noble intentions which are used to countenance hubristic arrogation of unconstitutional power. The ZRP is empowered to limit a certain class of gatherings in terms of the Public Order and Security Act [Chapter 11:17] (hereinafter referred to as POSA). It is not every public gathering which is subject to the notification requirement in terms of POSA, but only public meetings, processions and demonstrations. In fact, many gatherings including religious, educational, recreational, sporting and charitable meetings are exempt from this regulation. It would be patently unlawful for instance, for people gathering for church or a musical concert to be subjected to the ZRP’s claim that all public gatherings are banned. As such, the press reports which claimed that churches were ‘defying’ the ban were misplaced.

The power to prohibit certain gatherings is in terms of Sections 26 and 27 of POSA. Section 26 is the ex-post review after application by a convener whilst Section 27 is the ex-ante blanket prohibition within a specific geographical area. The former allows the ZRP to publish a prohibition notice after failure to agree ways to prevent impeding human and vehicular traffic, damage to property and prevention of human injury. The latter permits the ZRP to prohibit public processions and demonstrations for a period of one month to prevent public disorder and to publish such prohibition in the Government Gazette (Gazette) and a newspaper circulating in the area. It is only the ex-post review which allows the ZRP to prohibit public meetings. The ex-ante blanket ban is only in respect of public processions and demonstrations.

The ZRP has not indicated which provision it relied on to announce its ban on public gatherings. It is possible that the ZRP purportedly exercised its powers to issue a temporary ban under Section 27, in which case it would be extant for only one month and they would need to publish the notice in the Gazette and a local newspaper. On the other hand, they could have sought to combine their powers of ex-ante prohibition under Section 27 with their ex-post powers under Section 26 to pre-emptively announce their intention to prohibit all gatherings upon application under Section 26. In other words, the ZRP could have been editing, amending and thus creating a new power under POSA in terms of which they can announce that they will not apply their minds to the considerations under Section 26 of POSA but just reject all such applications as though they were exercising powers under Section 27. Such new power would be outside the scope of POSA, which is contrary to the rule of law. The powers to prohibit gatherings under Section 27 are limited in time and geographical reach. The current ban is indefinite. It has no temporal limit as in Section 27 and has no consideration of factors as in Section 26. It takes away the safeguards in both provisions whilst exercising their combined powers to supreme and deleterious effect. This bypasses the legislature’s clear intention and constitutes both an infringement of constitutional rights and assault on the rule of law.

Moreover, even if the ZRP were acting within the confines of POSA, they would still fall short of the Act’s requirements. There is no part of POSA which allows the ZRP to deny a public gathering because a state of emergency is in effect. Section 26 limits the ZRP to considerations of damage to property, human and vehicular traffic and injury to persons. Section 27 is only germane to public order. It makes no reference to states of emergency or indeed threats to “human security.” Declarations of public emergency flow directly from the Constitution. Section 113 of the Constitution empowers the President to make proclamations of a public emergency in the Gazette with effect for a period of fourteen days after publication unless approved by two-thirds of both Houses of Parliament at a joint sitting and for twenty-one days if Parliament is dissolved. If so approved, it remains in effect for three months, but if not approved or considered by Parliament, the President is required to revoked the state of emergency within seven days by another proclamation in the Gazette.

It is noteworthy that there was no reference to any such proclamation by the President in the announcement by the ZRP. There was no reference to the date of publication of such proclamation to ascertain for how long it would be extant or the specifics of the geographical area which is under a public emergency. This is vitally important because a public emergency is a grave step taken to implement extraordinary measures. During such a period, the Constitution allows Parliament to enact laws which further limit constitutional rights. Serving members of the security services are allowed to be employed and engaged in civilian institutions and the deployment of Defence Forces in support of the police and civilian authorities is also permitted. The President is empowered under the Emergency Powers Act [Chapter 11:04] to make sweeping regulations including for summary arrest and detention, including preventive detention, deportation and exclusion from Zimbabwe of non-citizens and taking possession or control of any property or undertaking. These regulations would operate notwithstanding other laws and give the President powers to amend, suspend and apply any law as he deems fit. It is a truly exceptional power, which is why it is apposite to establish the detail of its temporal extent.

Of course, failure to cite the proclamation of a state of public emergency does not itself mean the proclamation is not in existence. However, if indeed the state of public emergency was proclaimed in terms of the law but was simply not reported or cited, this would still be insufficient basis for the announcement by the ZRP. It would only answer the question of whether there is a legal state of public emergency in force. The power to enact laws and regulations in terms of a state of public emergency is granted to the President and Parliament. These are the elected branches of government. The ZRP is not elected. They have no legislative mandate. They cannot seek to modify and implement an amended version of POSA even under a state of public emergency. They can only act in terms of a law or regulation from the political branches of government enacted in terms of a properly gazetted proclamation of a state of public emergency. Instead, the ZRP proceeded to announce that it was exercising powers neither granted by POSA, nor the Constitution and the Emergency Powers Act. On that basis, they have ridden roughshod over fundamental freedoms using a questionable state of public emergency and no discernible basis in law.

This would be markedly different if the President had declared a state of disaster in terms of the Civil Protection Act [Chapter 10:06]. That Act permits the President to make such declaration in any manner he deems fit, but to cause it to be published in a statutory instrument as soon as possible. It requires the Minister of Local Government, Public Works and National Housing to communicate the declaration to Parliament at its next sitting and allows him/her to make regulations, but nowhere near the sweeping powers granted to the President in a state of public emergency. Such declaration lasts for three months subject to extension or earlier revocation by the President. In the program Fighting Cholera aired on ZBC TV on 27 September 2018 the Director of Epidemiology & Disease Control at the Ministry of Health and Child Care, Dr. Portia Manangazira, stated that it was a state of disaster that had been declared. This further suggests that the ZRP acted prematurely without ascertaining the legal regime governing the State’s response to the cholera outbreak. Nevertheless, neither a state of public emergency nor a state of disaster would justify the course taken by the ZRP.

There is nothing that stops the ZRP from complying with the requirements of POSA if they seek to effect such drastic measures. Further, the Constitution empowers any court to evaluate the validity of action taken in consequence of the declaration of a public emergency. The actions of the ZRP are reminiscent of the Robert Mugabe era when the police were cavalier and hubristic in arrogation of powers accorded by neither the Constitution nor Statute. Narrow definitions of public gatherings in POSA have been taken to mean all manner of gathering. The ex-ante and ex-post reviews appear to have been combined to give effect to a public emergency whose legal existence is highly questionable. Though the cholera and typhoid epidemics demand action by the State, that is no reason to undermine the rule of law and usurp the legislative function to make the ZRP operate as though it is above the law.