The Zimbabwe Republic Police (ZRP) has
issued a new decree banning
demonstrations in central Harare.
Although odd, the move is hardly
surprising. This is a ZANU PF government
and its reaction to setbacks is
predictable: they often respond with the
most unreasonable moves, driven by
arrogance and stubbornness. In order to
understand why this is yet another
misguided and unreasonable move by the
ZANU PF regime, a brief account of
events of the past two weeks is useful.
On 1 September 2016, the ZRP issued
Statutory Instrument 101A of 2016. Its
primary purpose was to ban
demonstrations in central Harare for a
period of two weeks, from 2 to 16
September 2016.
This ban was challenged at the High
Court. On Wednesday 7 September 2016,
Justice Priscilla Chigumba issued an order
declaring SI 101A/2016 invalid because of
its inconsistency with the Constitution.
However, the order of invalidity did not
come into operation because the judge
suspended it for a period of 7 days
allowing a “competent authority” to
correct the defects in SI 101A/2016.
It is within this context that the ZRP have
now issued a new order banning
demonstrations in central Harare. This
time however, they have extended the
ban from 2 to 4 weeks. The new ban will
run until 15 October.
Even if this is to be regarded as the
state’s attempt to correct the defect using
the grace period given by the High Court,
it is impossible to identify the corrective
measure when they have used exactly the
same instrument that failed the last time.
If anything, the new order is worse
because it is for a longer duration. On
the basis of current information, the new
ban suffers from the same defects that
affected the validity of SI 101A/2016.
As previously argued in these pages, the
fundamental and fatal defect of SI
101A/2016 was that it contravened section
134(b) of the Constitution. Section 134(b)
prohibits statutory instruments that limit
or infringe upon fundamental rights set
out in the Constitution. It states that,
“statutory instruments must not infringe
or limit any of the rights and freedoms set
out in the Declaration of Rights” . The
language demonstrates that the
prohibition is mandatory and it means
any statutory instrument which limits or
infringes upon fundamental rights in the
Constitution would be invalid. The effect
of SI 101A/2016 was to limit a number of
rights, including the right to demonstrate,
freedom of assembly and association,
freedom of expression, freedom of
movement and political rights, all of
which are guaranteed under the
Constitution. It was partly on this basis
that Justice Chigumba declared that SI
101A/2016 was invalid because it was
inconsistent with the constitution. In its
order, the court cited sections 2 and
175(6)(a) of the Constitution but the
substantive basis for this consistency was
that SI 101A/2016 violated s. 134(b) and
various sections of the Declaration of
Rights which it violated.
The new order is also issued as
subsidiary legislation. It must therefore
conform to the terms of section 134(b) of
the Constitution. Since it seeks to do
exactly what its immediate predecessor
SI 101A/2016 sought to do, the new ban
carries the same fatal defects which led
the judge to declare SI 101A/2016 invalid.
It is impossible to see how the new order
can survive where SI 101A/2016 failed.
The ZRP have defied the ruling of the
High Court by reproducing a declared
illegality. They have also squandered the
grace period they were given by the
judge to take remedial measures.
When the High Court issued the order
against SI 101A/2016 last week, my view
was that while the suspension of the
order had bought some time for the state
which was keen to dilute the momentum
of demonstrations, it would be impossible
for it to correct the defects which were of
a fatal nature. Even the provisions of
POSA could not save the ban, whichever
authority was used to issue it. It is odd
that the same officer who issued the
defective ban has issued the new ban. In
all probability, the new ban will
therefore suffer the same fate as its
predecessor.
But why would the ZANU PF regime act
in this manner? Why would it do the
same thing that has already failed? Is it
not an act of folly to do the same thing
twice, hoping to achieve a new result?
It can’t just be incompetence, although
it’s a factor. If it’s incompetence, I
suspect it’s deliberate. Part of the reason
is sheer arrogance, the will do as ZANU
PF pleases regardless of what the courts
or the Constitution say. They are ZANU
PF and they do what they want – that is
the clear message.
But this is also a regime that has no
respect for the rule of law or for
constitutionalism. A court has just
declared the limits of its power and gone
out of its way to give it an opportunity to
make corrections, but the ZANU PF
regime had basically scorned it and
repeated the same failed trick. It’s a
clear snub to the judiciary. This is ZANU
PF essentially undermining the judiciary
by disregarding advice and ruling.
It’s also a message to the opposition and
citizens that the legal route they are
pursuing is futile. The law was clearly
pronounced by the court and if ZANU PF
cared to listen they would have done
things very differently, or perhaps even
tried to fast-track amendments to POSA
to ensure consistency with the
Constitution. But no, they have chosen
instead to do a repeat of an already
discredited method. The message from
ZANU PF is that this is a political rather
than a legal matter.
Another reason is that ZANU PF knows
that even if they are doing the wrong
thing, the opposition and citizens will
respond with legal challenges, which will
only buy more time for the regime, while
derailing the momentum of the
demonstrations, which had gained
intensity in July and August and were
getting harder to contain. The underpaid
police had never been so busy for a long
time and now they were required to be
on stand-by every day. At some point,
they were bound to feel the fatigue and
the futility of fighting their own
countrymen and women. The ban on
demonstrations has brought some respite
for the police service and reduced the
risk of depleted morale.
Meanwhile the intensity of
demonstrations has dissipated since the
ban at the beginning of September. While
it is appropriate to use the legal route, it
is also playing into the hands of ZANU
PF. At some point however, the
opposition and citizens must decide
whether that route is serving their
interests or their adversary’s. They may
have to be more creative in their
methods of challenging the ban on
demonstrations, which is likely to be
renewed perpetually every four weeks.
Overall, I am not shocked by what ZANU
PF has done. You always expect the
worst possible response. The renewal
and lengthening of the ban, against the
court’s judgment on the validity of the
instrument was entirely predictable.
ZANU PF has a simply poured the same
old (and cheap) wine into a new bottle.
waMagaisa
http://alexmagaisa.com/2016/09/13/new-ban-on-harare-demonstrations-old-wine-in-a-new-bottle/
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