Mixed feelings over the Maintenance of Peace and Order Bill
Participants during the MOPO Bill publing hearings in Mutare

Pursuant to section 141 of the Constitution, the Portfolio Committee on Defence, Home Affairs and Security Services conducted joint public hearings with the Thematic Committee on Peace and Security around the country recently. The public hearings supported by USAID were held from 3 to 7 June 2019 in 18 centres countrywide.  The joint Committee split into two sub-committees in order to cover more centres within the allocated time-frame. Hence Team A covered the Southern Region whereas Team B covered the Northern Region of the country.

The Maintenance of Peace and Order Bill (MOPO) seeks to repeal the Public Order and Security Act (POSA) as part of the alignment process of existing laws to the provisions of the 2013 Constitution. POSA is one of the controversial laws in Zimbabwe’s statute book which has received public condemnation mainly from opposition political parties and civil society organizations for its draconian provisions that the authorities have been applying selectively to thwart efforts to hold public meetings as well as conducting public demonstrations freely by citizens. MOPO Bill is, therefore, of great public importance as it seeks to regulate citizens rights guaranteed in the Constitution. The Bill was gazetted on 19 April 2019 and in terms of parliamentary Standing Rules and Orders was referred to the Portfolio Committee on Defence, Home Affairs and Security Services for public consultations and scrutiny.

While appreciating an opportunity to contribute to the law-making process as guaranteed in the Constitution, members of the in various centres visited by the joint Committee appealed to Parliament to translate the Bills into local languages as well as the Braille to ensure meaningful participation by citizens. They noted that the legal jargon was a barrier to many people who would otherwise be interested in analysing and expressing their views on the Bills. They also noted that the absence of parliamentary Constituency Offices has made it difficult for citizens to access the Bills in advance to make their opinions. Some participants told Parliament that some venues and times were inappropriate and therefore urged Parliament to consult the local communities where and when it is best to hold public hearings to ensure that people do not miss an opportunity to express their views.

Members of the public were asked to express their views freely without fear or favour. The Committee Chairpersons assured the participants that they were protected by parliamentary immunity and privileges as provided for in the Standing Rules and Orders and the Privileges, Immunities and Powers of Parliament Act. Views expressed by the public in all the 18 centres visited by the joint Committee teams are summarised as follows.

  • Retention of POSA Clauses

Some members of the public noted that the MOPO Bill was substantially not different from POSA as some clauses were uplifted word for word from POSA. Some participants felt that MOPO contained regressive clauses that will make it difficult for citizens to exercise their rights to demonstrate and assembly. They said the civil liability for the convener was an intimidatory tactic by government to scare off citizens from exercising their rights. Hence, some participants argued that the Bill was just a window-dressing exercise by Government to spruce up its image in the eyes of the public and the international community.

 

  • Banning of Dangerous Weapons

While most participants welcomed the banning of carrying some items in public defined as dangerous weapons, they said the clause needed further clarity given that some of the weapons classified in the Bill were used as essential tools; e.g. axes, which citizens cannot do without, especially in rural areas. The Bill should take this into consideration.

  • List of Demonstrators

The public noted that the requirement under Clause 5 of the Bill for conveners of public gatherings and demonstrations to submit lists of demonstrators was not feasible as demonstrations by their nature are self-voluntary and are not limited to members of the lead organization. Also, the sheer numbers if it is a popular demonstration make it impossible to compile a list of all the participants. Some participants who expressed their views at the public hearings saw this as a ruse by government to bar citizens from organization demonstrations on a technicality. Hence they recommended the repeal of this provision.

  • Notifying Police of Public Gatherings

Clause 7 of the Bill retains the POSA provision. Participants noted that under POSA, Police interpreted this provision to mean authorization or approval to hold a public meeting or to demonstrate. As a result, police will use this provision to deny the public, civil organizations and opposition political parties to hold their meetings or demonstrations under the guise that they did not have enough manpower to maintain law and order in such gatherings. Participants also noted that this provision was prone to abuse as it was selectively applied. Hence participants said the Bill should make it clear that notifying the police was not tantamount to seeking their authorization or approval.

  • Purpose of Gathering

The public also expressed dissatisfaction with the requirement under Clause 7 for the conveners of public meetings to disclose the purpose of such a gathering. They argued that this was a violation of citizens’ privacy. Police should not enquire into the merits of the gathering as this may open the system to abuse especially if the police were of the different view on the issue. Hence, notifying the police should be enough.

  • Demonstrations within Protected Areas

Clause 10 of the Bill prohibits any public gatherings within the vicinity of Parliament (to 20 metres), Courts and other protected areas and places (to 100 metres). The Bill also states that the convener of such a gathering should seek permission from the Speaker of Parliament and the Chief Justice, Judge President or the responsible authority, respectively. Firstly, citizens noted that such a provision has an effect of taking away their right to be heard as it will prevent them from presenting their grievances to the very same people or authorities that are supposed to grant that permission. With respect to Parliament, participants noted that it was a public institution that should be easily accessible to the public so that they are able to present petitions as this is a guaranteed right in the Constitution. They also noted that the Bill does not give a time-frame within which the authorities act on the request by the convener. Hence, they argued that authorities may simply ignore the request as a way of preventing citizens staging a demonstration, which may be targeted at their behaviour or conduct.

  • Civil Liability for Conveners

Participants were sharply divided on this issue; some welcomed the provision and yet some vehemently opposed it. Those who embraced the provision of Clause 12 said there must be compensation for the destruction of property and injury to innocent people arising from violent demonstrations. And they argued that the convener should suffer civil liabilities. However, those opposed to this provision pointed out that this was an unjust provision as demonstrations or public gatherings may be hijacked by criminal elements or political opponents for their selfish ends. Hence, the spirit of the law should not be to punish the convener but the culprits.

  • Power of Police

Participants strongly condemned the provision under Clause 13 of the Bill which empowers the police use “force” and “firearms and other weapons” to disperse an “unlawful gathering”.  Firstly, they noted that the nature of “force” is not defined in the Bill and this gave the police powers to use their own discretion. Secondly, members of the public strongly opposed the use of firearms and “other weapons” and argued that this will lead to the unnecessary loss of life. They cited the events of 1 August 2018 and January 2019 where innocent lives were lost at the hands of the police and the army. They recommended that police should only be empowered to use alternative means that do not lead to the loss of life as killing civilians was a violation of the Constitution.

  • Carrying of Identity Documents

Some participants welcomed this provision and argued that in cases of accidents or a crime being committed it was necessary for police to identify the victims or people in question. The proponents of this provision also welcomed the 7-day grace period within which a person is required to identify himself or herself to the police. This is an improvement from the POSA provision that gave police powers to arrest anyone who failed to produce his or her ID upon request by police.  However, the Bill does not say whether within those 7 days the person will be in detention or not otherwise the provision does not make sense because the person can simply disappear. However, those that opposed this provision pointed out that it violates a previous Court judgment handed down in 1997, which declared that such a provision was unconstitutional. They argued that failure to produce an ID even within the 7-day grace period should not be a criminal offense given that the process of acquiring birth certificates and IDs was very cumbersome and expense for the majority of people. They argued, therefore, that government should first address this problem and make the acquisition of these documents easy for citizens. They also cited the risk of being exposed to abuse and robbery by criminals posing as police.

  • Stop and Search Without a Warrant

Most participants noted that this provision gives too much powers and wide discretion to the police and argued that it is open to abuse or selective application to target those that the state considers its “enemies”.

  • Deployment of the Army to Assist Police

Clause18 of the Bill seeks to align the POSA to sections 213 and 214 of the Constitution. POSA empowers the Minister of Defence to deploy the army to assist the Police to quell riotous demonstrations. The POSA provision is ultra vires the Constitution. The Constitution assigns powers to deploy the army to the President, who is also the Commander-in-Chief of the Defence Forces.  This is another Clause of the Bill that drew sharply divided opinions from the public, along partisan lines. Views for or against this provision were divorced from the provisions of the Constitution but seemed to be motivated by the August 2018 and January 2019 events, which saw lives being lost when the army was deployed to assist the police to contain violent demonstrations and looting of shops. Those that supported the provision argued that the President should be fully empowered to deploy the army as he saw it fit since he is the Commander-in-Chief to protect property and innocent lives during violent demonstrations. However, some participants felt that since the army is not trained to deal with civilian matters and crowd control, the Bill should preclude the deployment of soldiers for that purpose. Alternatively, they argued that if the need arises to deploy the army to assist the police, the President should first seek approval from Parliament instead of the current provision which says the President can only brief Parliament within 7 days after deploying the army. Be that as it may, the intention of this provision of the Bill merely seeks to align POSA provision to the Constitution.

  • Magistrates Powers

Some members of the public felt that the Bill gives enormous powers to magistrates which are disproportionate to their office. It was noted that the powers which the Bill seeks to bequeath magistrates were formerly exercised by higher Courts under POSA.

The two Committees are in the process of drafting the report which will soon be tabled in Parliament.

 

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