Speech Given at a Public Forum Organized by the Christian Communicators Association of Zimbabwe: Bulawayo Rainbow Hotel
Introduction
I have been asked this evening to debate the Public Order and Security Bill with the Minister of Home Affairs, the Honourable Dumiso Dabengwa. He has asked that I speak first so that he is able to rebut my critique of the Public Order and Security Bill and I welcome this.
Before commencing my critique let me make a few preliminary points. The Minister and Government generally have recently been criticised by some quarters of introducing the second draft of the Bill in its present form. It is alleged that the second draft of the Bill strengthens Government controls (when compared to the first draft) and that Government has not taken into account the views of civic society expressed when the first draft of the Bill was discussed with human rights organisations. In light of this, let me say at the outset that the second draft of the Bill is an improvement of the first draft and that Government has taken into account some of the concerns raised by civic society.
Let me also say that the Minister and Government should be commended for including civic organisations in this discussion process. Government has not always done this in the past and it is a welcome development. Likewise I am grateful that the Minister has taken the time this evening to come and debate the Bill with all of us. This is what true democracy is all about. Zimbabwe is facing enormous problems at present and none of us have all the answers. I believe that constructive, transparent and forthright debate will provide many of the answers to our present woes and this process should be encouraged.
Finally in these preliminary remarks let me stress that no right thinking person would argue that we do not need any legislation whatsoever to regulate our constitutional rights to assemble, associate and express our views peacefully. My concern is that legislation should enhance our constitutional rights not frustrate them. In this regard it is interesting that the preamble to the memorandum to the Public Order and Security Bill stated that the Bill will “replace the draconian Law and Order (Maintenance) Act “. My principal concern is that whilst the Law and Order (Maintenance) Act was certainly draconian the present Bill is also draconian, albeit somewhat less so than the Law and Order (Maintenance) Act. Indeed in many ways the wording of the preamble is yet another Government smoke screen much in the same way Government statements that the new Communications Bill is designed to liberalise the airwaves (and in many respects does just the opposite) is a smoke screen . Why then do I state that the Bill is still draconian? I do not have the time this evening to go through the Bill in great detail and I will simply highlight my main points of concern. The points are not in order of importance as I will simply go through the Bill in order of the various clauses.
Critique
1. Clause 9 Harbouring, Concealing or Failing to Report Insurgents, Bandits or Saboteurs
Clause 9 (1) makes it an offence to harbour or conceal insurgents, bandits or saboteurs. Potentially it carries a sentence of 10 years imprisonment or a fine of $50 000-00 or both. Clause 9 (2) (3) makes it an offence not to report the presence of bandits etcetera to a Government official within 72 hours. A person failing to report faces a fine of up to $25,000.00 or imprisonment of 5 years or both.
I am sure that many of us are aware of the thousands of poor rural people during the liberation struggle and Gukurahundi who were caught between a rock and a hard place. Guerrillas or dissidents would come to their kraals seeking food and other support. If they reported the presence of the guerrillas or dissidents they knew that they faced the possibility of being killed by them. That was the rock. On the other hand if they did not report the presence of guerrillas or dissidents to security forces they could at worst be killed or at best face charges in terms of the equivalent provision in the old Law and order (Maintenance) Act. Hundreds if not thousands of poor rural people were imprisoned for failing to report the presence of guerrillas or dissidents. I always felt that the old provision was extremely harsh. Most people in rural areas do not have telephones, access to a good postal service and motor vehicles. They have to report the presence of insurgents or bandits in a very visible way. Once they have travelled a long way to the nearest police station they have to return to their villages with little protection. The fact that they have reported is usually easily established. In my experience most rural people detest violence and had, in the 1970’s and 1980’s, genuine fears for the lives of themselves and their families.
Accordingly I recommend that a specific defence be introduced to the Bill stating that if a person has reasonable fears for the life of himself or his family he will have an absolute defence to this charge. In stating this, I should mention that following the discussions of the first draft a sub clause to this effect was prepared by Government lawyers but has been omitted from the new Bill. I believe strongly that this defence must be introduced before the Bill is made into law.
Clause 11
Subversive Statements and Publications
Clause 11 makes it an offence for a person to initially make subversive statements or publications which promote public disorder, public violence, the bringing down unlawfully of a constitutionally elected government and so one. It carries with it a penalty of up to $25,000.00 or imprisonment of 5 years or both.
I. I cannot take exception to most of this clause. All democratic Zimbabweans are committed to non violent change and respect for the rule of law. However there is one phrase in the clause which gives rise to concern and that is “Public Disorder”. What does this phrase “Public Disorder” means? It is not defined in the interpretation clause (Clause 2). We must ask ourselves how it will be interpreted.
The ZCTU’s recent calls for peaceful stay-aways have led to public disorder. Notwithstanding what the Herald would have us believe the recent stay-aways were extremely successful in both Harare and Bulawayo and other centres, which virtually closed down totally for two days. The Railways did not work, factories were closed and the nation pretty much ground to a halt. Surely that amounts to “public disorder”. I believe that this phrase in Clause 11 could well be interpreted, in that manner and used to stifle peaceful protest. If it is interpreted and used in this manner the effect will be to make illegal what civil rights leader Martin Luther King advocated in the United States of America in the 1960’s. Martin Luther King once said:
“Mass civil disobedience as a new stage of struggle can transmute the deep rage of the ghetto into a constructive and creative force “.
It seems to me that the ZCTU’s calls for peaceful stay-aways are in line with Martin Luther King’s philosophy. We all saw the havoc wrought by the explosion of anger in January. The ZCTU was obviously acting responsibly in trying to transmute the deep rage of poor people in Zimbabwe into a positive force and it did so by calling for peaceful stay-aways. Government should not kid itself by thinking that it can simply put a lid on the anger that people feel at present. It must leave some avenue open for peaceful protest which may well result in disorder but which should nonetheless be lawful. If it does not, the pressure cooker of Zimbabwean politics will ultimately explode to the detriment of all of us.
In the circumstances I recommend that Clause 11 (A) should be amended by the deletion of the words “Public Disorder”.
Clause 13
Organiser to Notify Regulating Authority of intention to hold public gatherings
Clause 13 makes it obligatory for the organiser of any public gathering ( which is defined as a gathering for the purpose of demonstrating ) to give the local commanding officer of the police three days written notice of the holding of the gathering. On the face of it this clause seems reasonable. Its purpose is to enable the police to organise itself and to that extent it is a necessary provision.
However I still have two concerns regarding it. Firstly there is a sub clause which states that the commanding officer of the police may, in his discretion, permit shorter notice to be given. This is a welcome provision as long as it is done fairly. Our recent experience in Zimbabwe is that the police, certainly in its higher echelons, is politicised and does not always act impartially. It remains to be seen whether this proviso is used to benefit ZANU.PF alone. In making this statement, I am not suggesting that this aspect of the Act should be amended. I am simply warning that it must be used by the police in a fair manner to benefit all Zimbabweans. Secondly, I am concerned that whilst an obligation is placed on the organiser of a public gathering to give three days written notice of the holding of the gathering, there is no obligation placed on the commanding officer to give the organiser a receipt. As we will see later, in regard to the civil liability which arises out of the failure to provide written notice, an onus is cast on the eh organiser to prove that he did give three days written notice. I fear situations arising in terms of which organisers give written notice but as a result of either incompetence or malice the commanding officer of the police looses the written notice. The organiser bears the onus of proving that written notice has been provided and this may lead to injustice if he is unable to produce the document.
In the circumstances I recommend that Clause 13 be amended in such a way that it compels the commanding officer of the police to give the organiser of a public gathering an official receipt once written notice has been submitted.
Clause 14
Control of Public Gatherings
Clause 14 gives the police wide powers to control public gatherings. Once again on the face of it this appears to be reasonable and necessary. Nevertheless I still have one major concern regarding this clause.
The clause gives the police wide powers to control public gatherings but no obligation is placed on the police to facilitate a gathering. We have to bear in mind that we have the overriding constitutional rights to assemble, associate and express our views. During the past year in Zimbabwe we have seen the spectre of the police turning a blind eye to veteran demonstrations, the beating up of opposition politicians’ and the destruction of opposition politicians property. In contrast we have also seen the police in the past year frustrating people’s constitutional rights to demonstrate peacefully. In this regard mention should be made of the difference between the demonstrations held in Harare and Bulawayo on the 9th of December 1997. As we all know there was a radical difference between the two. In Harare the police prevented demonstrators from getting into the city centre as the President was about to deliver his State of the Nation address and did not want to be inconvenienced. Violence was used against the demonstrators and they responded in a violent fashion. In Bulawayo some 50 000 people marched to the City Hall in absolute peace and several of the leaders of the demonstration delivered speeches. The huge crowd then disassembled peacefully and by 2:00pm it seemed as if it was a Sunday afternoon.
The difference of course is that in Harare the police prevented (attempted to control) the demonstration whereas in Bulawayo the police facilitated the demonstration. In Bulawayo the police concentrated all their energies on diverting and directing traffic .They mingled with the crowd and monitored the situation. There was no violence and it provided a useful illustration of the fundamentally peaceful nature of Zimbabwean people and the role that the police should perform.
In the circumstances I recommend that Clause 14 should be amended in such a way as to make it obligatory for the police to facilitate demonstrations and to act in a reasonable and fair manner in doing so.
Clause 15
Prohibition of Public Gathering to avoid serious public disorder
In terms of Clause 15 (1) the local commanding officer of the police may apply to a local magistrate to prohibit a public gathering if he believes the gathering is likely to occasion “serious public disorder”. A magistrate may issue an order prohibiting the holding of a gathering and any person who fails to comply with such a direction is liable to a fine of up to $2 500,00 or imprisonment of six (6) months or both .
This provision results in a drastic invasion of our constitutional rights and it is simply not satisfactory for a junior magistrate who, especially in rural areas and small towns, is more likely to be susceptible to political pressure, to have the power to curtail these fundamental constitutional rights. In saying this I do not dispute the need for some provision. No doubt there will be occasions when people with evil intent will attempt to hold public gatherings with the intention of bringing about violence and destruction to property. However I see no justification for a magistrate to be given the power to terminate a constitutional right. Magistrates very really rarely deal with constitutional issues and they do not have the experience or training to deal with such issues in an adequate manner. On the other hand judges of the High Court of Zimbabwe do have such experience and training.
In the circumstances I recommend that power to curtail public gatherings should be given to judges of the High Court of Zimbabwe. In passing, if the minister retorts that one has the right of appeal to a High Court judge, let me say that that provision is both time consuming and expensive and will have the effect of negating our constitutional rights.
Clause 17
Civil Liability in certain circumstances of organiser of public gathering
Clause 17 (1) makes the organiser of a public gathering liable for any damage to property occasioned by public disorder or breach of the peace arising out of the gathering if he has failed to give notice or has failed to comply with an order or direction given by a police officer or if he has incited persons that are gathering to engage in public disorder or a breach of the peace. Clause 17 (3) casts an onus on the organiser to prove that he gave notice to the police and that he complied to the best of his ability with any direction or order given by a police officer.
In my view this clause is possibly the most draconian aspect of the Bill. Not even the Rhodesian Front thought of such a measure! In saying that it is draconian let me stress that I do not argue with a provision which punishes organisers of gatherings for not giving notice. As I have said before that is a reasonable requirement but nonetheless I have great reservations about the ramifications of this clause.
Firstly Clause 17(3) states that the organiser has the onus of proving that he gave notice. As I have stated before what happens if the police losses or denies receipt of the notice? What happens if the police act in a biased manner and deliberately destroy the notice? The onus cast on organisers makes it absolutely vital that Clause 13 be amended to compel the police to provide an official receipt.
Secondly I foresee that situations could arise which would lead to most unjust application of this law. Ponder this. An organiser gives written notice that he intends conducting a demonstration down First Street. The police initially advise that that is in order. The demonstration goes ahead and some 50 000 people assemble to march down First Street. However moments before the commencement of demonstration a police officer by oral announcement ( as the police are entitled to do in terms of Clause 14 (4)(C)) gives a direction telling the organiser that they can on longer go down First Street but must go down Second Street. The organiser then frantically tries to divert the 50 000 people down Second Street but fails. The police prevent the demonstrators from coming down First Street and violence erupts. The organiser now bears the responsibility of proving that he complied to the best of his ability with a direction. This is an unreasonable onus to bear. I believe that this could lead to unjust results.
Furthermore we need to study the events of the last few months and indeed the demonstrations which occurred in November 1995,(ostensibly organised by Zimrights). There is no doubt in my mind that much of the violence that flared up this year and in 1995 was as a result of agent provocateurs. In the light of what has happened in Zimbabwe the casting of the onus on organisers of demonstrations in this manner is unreasonable. I believe that the common law is more than sufficient to protect innocent people who suffer loss as a result of unlawful demonstrations. The Clause in its present form will have the effect of deterring people from organising demonstrations. Indeed I believe that the intention of this clause is to deter people from organising demonstrations.
Conclusion
For the reasons I have outlined above, and for other reasons (which time constraints have prevented me from elaborating on), the Public Order and Security Bill remains draconian and unacceptable. Government needs to understand that it will not resolve the anger felt by the people of Zimbabwe today by trying to control them. I believe that this Bill should properly be called the “Public Control and State and Security Bill” alternatively the “Pressure Cooker Bill”. It appears that government believes that as long as it builds strong enough legislation it will be able to control people and their thoughts.
It is in this regard that another quote from Martin Luther King is apposite:
” The great masses of people are determined to end their exploitation. They are awake and moving towards their goal like a tidal wave. You can hear them rumbling in every village, street, in the houses, among the students, in the churches and at political meetings. These developments should not surprise any student of history. Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself. The Bible tells us the thrilling story of how Moses stood in Pharaoh’s court centuries ago and cried “Let my people go” “.
The same is happening in Zimbabwe to day. People are talking in every town, street and house. People are discussing in beer halls and there is a tidal wave of discontent. The process of change is inevitable. If government wants to prevent disorder whilst going through this transitional period it must tackle the fundamental complaints of the people, namely corruption, abuse of power and economic mismanagement, not imposed draconian laws on the people which ultimately will not stop the process of change in any event.