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Bills Digest on the Maintenance of Peace and Order 2019 

 

BILL DIGEST

NAME:                                  MAINTENANCE OF PEACE AND ORDER

HB NUMBER:                      H.B. 3. Of  2019

MINISTRY:                          MINISTRY OF HOME AFFAIRS

DATE:                                   APRIL 2019

 

Introduction

The Bill seeks to repeal the Public Order and Security Act (POSA), last amended in 2007.  The purpose of the Bill is to re-align certain provisions in POSA with the Constitution as well as to response to court rulings which declared some provisions unconstitutional. The short title of the Bill, Maintenance of Peace and Order, clearly outlines that peace and order are paramount to the wellbeing of any nation.  Section 10 of the Constitution states that the “State and every person, including juristic persons and every institution and agency of government at every level, must promote national unity, peace and stability”. Therefore, peace and order are key pillars for the growth and development of the country.

Analysis of the Clauses

Clause 1 (Short title)

The short title lays out the name by which the law shall be known as the “Maintenance of Peace and Order Act”.  This repeals the title of Public Order and Security Act (POSA).

Clause 2 (Definition Clause)

Some of the key definitions include:

      i.        Public meeting – it means any meeting of more than 15 persons in a public place.

    ii.        Public Place – it includes a building, open space or space which the public has access to.

 

Clause 3 (Regulating Authorities)

The regulating authorities in this bill are the police and a convener of the meeting has an obligation to inform the police. 

 

Clause 4 (Temporary Prohibition of Possession of Certain Weapons with particular Police Districts)

The police may temporary prohibit the carrying of the following weapons:

Ø  Catapults, machetes, axes, knobkerries, swords, knives or daggers.

Ø  Any traditional weapon -

if it is likely to cause public disorder or a breach of peace.  The ban should not exceed a period of three months.  Secondly the prohibition will only have the effect of the law upon publication in a local newspaper, or through notices affixed on public buildings or by announcement of a police officer broadcast.  The area of concern is whether these modes of communication are sufficient to reach persons in various parts of the country.  Any breach of this provision will attract a fine not exceeding level 5 or to imprisonment not exceeding 6 months.

 

Clause 5 (Appointment of Conveners and Authorized Officers in the Case of Processions and Public Demonstrations)

Under this clause, an organization intending to hold a public demonstration has to do the following:

      i.        Appoint person(s) responsible for the arranging the demonstration,

    ii.        Notify the police in writing of the names and addresses of persons organizing the demonstration.  If the meeting is that of a political party, the regulating authority may request the political party at regular intervals, a list of members of the party who are entitled to attend the meeting concerned.

The requirement for names, addresses and list of members has led to public debate that this was one of the stringent conditions under POSA which made it difficult for conveners to organize their demonstrations.

Clause 6 (Appointment of responsible officers for public meetings)

Under this clause persons who are appointed as organizers of public meetings are regarded as conveners for the purposes of Part II of the Bill.

Clause 7 (Notice of Processions, Public Demonstrations and Public Meetings)

This clause remains the same from that which existed under POSA.  The section sets out the requirements to give a notice.  The only change is that where a facsimile number was required, it has been updated to that of cellphone and email.  The requirements include:

      i.        The convener should give notice of public demonstration not later than 7 days before the event takes place.  This should be done in writing to the police.

    ii.        During election period, the period of notice shall be 3 days.

   iii.        The notice shall contain information such as the name, address, email and cellphone numbers of the convener of the gathering.

   iv.        The notice shall outline purpose of gathering, the time, duration, date, and place and anticipated number of participants. 

Clause 8 (Consultations, Negotiation, Amendment of Notices and Conditions with Respect to Gatherings to avoid Public Disorder)

Under sub-clause (1) a senior police officer has to notify the convener of a public demonstration within three days of receiving the notice on the proposed demonstration.  If the police officer has no objections that this will not cause any disruption or disorder, approval will be given. This is a positive development because previously under section 26 of POSA no time-limit was specified.  So, conveners could be kept in the dark until the last minute before being told about the position of the police.

Under sub-clause (3) it lays out that if the police receive credible information that the proposed demonstration will result in serious disruption to vehicular or pedestrian traffic or injury to participants, the regulatory authority will invite the conveners to a consultative meeting at least 7 days before the demonstration. This sub clause retains section 26 of POSA.  The challenge with this subclause is that the conveners of a demonstration must give at least seven days’ notice to the regulating authority and, if the regulating authority foresees possible disruption or disorder, he or she must invite the conveners to a consultative meeting at least seven days before the demonstration. Therefore, it becomes difficult to hold a consultative meeting if the conveners have given the minimum seven days’ notice.

Clause 9 (Exemption of Certain Gatherings from Sections 5,6, 7 and 8)

The schedule of the bill outlines public gatherings that may be exempt from provisions of this bill which include: wedding, funeral, members of professional bodies, agricultural shows, musical shows, lottery draws, among others.  There has not been any deviation from the position that subsisted under POSA.

Clause 10 (Gatherings in Vicinity of Parliament, Courts and Protected Places)

The bill gives a radius for demonstrators in relation to institutions such as Parliament, the courts and other protected places.  However, the requirements of distances will not be applicable where authority has been sought and granted by the Speaker of Parliament or the Chief Justice.

Clause 11 (Appeals)

Where a convener is aggrieved by a prohibition notice, an appeal can be lodged at the Magistrates court, and the magistrate may confirm, vary or set aside the prohibition notice.  In other words, the final arbiter on whether the demonstration should proceed or not lies with the courts.

Clause 12 (Civil Liability in Certain Circumstance of Convener of a Gathering)

Under this clause, if a demonstration is held without following the laid-out procedures in the bill, the convener will be held liable for any damages or injuries caused.  The aggrieved persons can seek compensation or other forms of redress through the courts of law.

Clause 13 Powers of the Police

This provision lays out the powers of the police during the course of the public demonstration.  Some of the powers include:

      i.        If the police are unable to provide adequate protection for the demonstrators, the convener shall be notified,

    ii.        The police may prevent people from deviating from the agreed route,

   iii.        Where the gathering is unlawful, the police may use force which should not be greater than is necessary for dispersing the persons gathering.

Clause 14 (Persons to Carry Identity Documents)

This clause differs to a great extent with section 32 of POSA. Under POSA a police officer had the power to arrest a person who failed to produce an identity document upon being requested to do so, and to detain the person until his or her identity is verified.  In the Bill, if a person cannot produce his or her identity document immediately upon being asked for it by a police officer, he or she must be given up to seven days within which to produce it at a police station, failing which he or she is guilty of an offence.  This clause is in line with a Supreme Court judgment delivered in 1997, Bryant Walker Elliot v Commissioner of Police SC41/97.  The judgment held that section 32 of POSA was unconstitutional as it inhibited freedom of movement. 

 

Clause 15 (Cordon and Search)

This clause empowers the police to establish a cordon around any area to contain any public violence.  Furthermore, without a warrant the police may conduct a search for any persons suspected to have committed an offence. 

 

Clause 16 (Powers of Stopping and Searching)

This clause gives the police powers to stop and search without a warrant any person or vehicle entering Zimbabwe in the interests of public safety, public order or public health. 

 

Clause 17 (Powers of Police Officers in Relation to Aircraft, Aerodromes and Airstrips)

The police have the powers to search any person or aircraft landed at an airstrip or aerodrome in the interests of public safety, public order or public health or for investigation of a criminal offence.

Clause 18 (When Defense Forces May Assist Police Service under this Act)

This clause seeks to realign section 37 of POSA by ensuring that the President and not the Minister of Defense, authorizes the deployment of soldiers to assist the police in maintaining law and order, as required by section 213 of the Constitution.  Sub-clause (3) will also oblige the President to inform Parliament within seven days after deploying the Defense Forces, in accordance with section 214 of the Constitution.

 

 

Conclusion

This bill has introduced new clauses, maintained old ones and struck off certain clauses in POSA in order to address gaps or violations of the Constitution.  Provisions that have been removed include section 27 of POSA, on Temporary Prohibition of Public Demonstrations, in line with the Constitutional Court ruling that the section was unconstitutional.

 

 

 

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