Fidelis Munyoro, Harare Bureau
The High Court yesterday suspended the ban on demonstrations imposed by the police in the Harare central business district, paving the way for the opposition political parties to carry out their protests without any hindrances from the law enforcement agents.
The suspension is for seven days.
This is meant to allow the State to rectify the invalidity of the defective instrument used to ban the protests.
Police last week issued Statutory Instrument 101A, which temporarily prohibited demonstrations in the central business district of Harare until September 16.
This effectively blocked last week’s planned so called mega-demo by opposition parties and the civil society.
However, Justice Priscilla Chigumba, suspended the ban following a legal challenge to the instrument launched by Democratic Restoration Assembly (Dare) National Electoral Reform Agenda (Nera), Vendors Association and Combined Harare Residents Association (Chra).
Harare District Police Assistant Commissioner Newbert Saunyama cited as the first respondent issued the Statutory Instrument last Friday. The other respondents in the matter were Commissioner General of the Police Dr Augustine Chihuri, Home Affairs Minister Dr Ignatius Chombo and the Attorney General Advocate Prince Machaya.
It emerged yesterday that the police failed to follow the elementary procedures in coming up with a statutory instrument.
This is despite the fact that the judge had advised them through the office of the AG to follow the constitutional requirements set out in coming up with the Statutory Instrument.
When the matter was postponed on Monday, they had two days to deposit an affidavit to show cause why they issued a Statutory Instrument without consulting the affected parties.
In granting the provisional order yesterday, Justice Chigumba ruled that the Statutory Instrument 101A issued last week by the police was invalid.
“It is ordered and declared that Statutory Instrument 101A of 2016 is invalid to the extent of its inconsistence with the Constitution as provided by Section 175 (6) (a) and section 2 of the Constitution,” said Justice Chigumba.
“It is just and equitable as provided for in Section 175 (6) (b) that this declaration of Constitutional invalidity be suspended for a period of seven working days to allow the competent authority to correct the defect.
“At the expiry of the seven working day grace period it is ordered that second respondent (Dr Chihuri) shall process and deal with all notifications for public gatherings and processions or meetings in the manner lawfully proscribed in Section 12 of the Public Order Security Act (Chapter 11:17).
“At the expiry of the seven working day grace period given to the respondents to correct the defects in the order issued in terms of Section 27 of the Public Order Security Act, The second and third respondent (Dr Chombo) shall be and are hereby interdicted from unlawfully interfering with the rights of citizens to exercise their right defined by Section 59 of the Constitution read together with Section 12 of the Public Order Security Act (Chapter 11:17).”
The police represented by Mr Happy Magadure of the AG’s office had opposed the constitutional challenge.
He relied on section 86 of the Constitution that provides for limitation of fundamental rights. But Justice Chigumba did not agree. She accepted submissions by the Zimbabwe Lawyers for Human Rights led by Mr Tendai Biti and Mr Dzimbabwe Chimbgwa.
The lawyers argued that Statutory Instrument issued by the police was not in accordance with Section 68 of the Constitution.
The Section provides that administrative conduct must be fair, impartial and transparent and also the notice for demonstrations.
The lawyers also correctly argued that the notice to ban demonstrations should be done in accordance with Section 27 of the POSA. The section provides that there must be consultations with the affected parties before taking such a drastic action.
In an interview last night, Mr Chimbgwa said in effect the ruling had suspended the operation of the legal instrument, to give the State an opportunity to act in accordance with the law.
“As things stand there is no law that bans the right to demonstrations and petitions as a result of the High Court order,” said Mr Chimbgwa. “We did not do this for us as lawyers. Our role as lawyers is to ensure that all State actors act in accordance with the Constitution and do not unlawfully limit rights of citizens.”
The opposition parties and Harare residents challenged the validity of the police ban on all demonstrations in the capital saying it was in contravention with the supreme law of the country. The ban was for two weeks and was supposed to expire on September 16.