The full bench of the Constitutional Court found a key section of the Public Order and Security Act (POSA) unconstitutional.
Writing for the majority, Justice Rita Makarau declared that section 27 of POSA which grants wide powers to the police to ban demonstrations for periods of up to 1 month in the interests of the preservation of public order is an unjustifiable infringement on the right to demonstrate and petition enshrined in the Constitution.
The highest court made a finding that the blanket ban in section 27 is unconstitutional because it has a dragnet effect, which completely nullifies the fundamental right to demonstrate and petition. More importantly, section 27 was found to deny rights in advance, condemning all protests and demonstrations before their purpose is known and denying citizens the opportunity to engage in mass protests and demonstrations crucial in an open and democratic society.
The case was filed and argued by Tendai Biti, of Biti Law, who is also a member of Zimbabwe Lawyers for Human Rights. The applicants in this case were Democratic Assembly for Restoration and Empowerment, Stendrick Zvorwadza, Combined Harare Residents Association and National Election Reform Agenda.
In accordance with the dictates of the Constitution, and the practice of the court, the order of invalidity will only become operational after 6 months to enable the Commissioner-General of Police and the Minister of Home Affairs to remedy the unconstitutional aspects of section 27 and come up with an alternative provision which give effect to the right to demonstrate and petition and limit it only in a manner which is fair, reasonable, necessary and justifiable in a democratic society.
ZLHR welcomes this development, having intervened in this case in fulfilment of its mandate to foster a culture of human rights and to encourage human rights protection at all levels of society through observance of the rule of law. Given the recent ‘ban’ of a demonstration organised by the Zimbabwe Congress of Trade Unions, this judgment unequivocally confirms that the powers of the police are limited and can never be used to curtail fundamental rights.
ZLHR remains committed to protecting the rule of law and will monitor the judgment to ensure compliance with the timeliness set by the court.
Zimbabwe Lawyers for Human Rights
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