During the past weekend the 17th and 18th February 2007 both factions of the MDC attempted to hold meetings, as is their right in terms of section 21 of the Zimbabwean Constitution, which were frustrated through the actions of the police, the courts and the Minister of Home Affairs.
In Bulawayo the MDC (Mutambara faction) intended to launch its defiance campaign at the Bulawayo City Hall on Saturday afternoon the 17th February 2007. Having initially received no objection from the police it was then subjected to a police raid on the 15th February 2007, the effective arrest of its administrator on the 16th February 2007, who was then advised that the meeting had been banned. When Secretary General Professor Welshman Ncube MP appealed to the Minister of Home Affairs in terms of section 25 (5) of the Public Order and Security Act (POSA) he was told by the Minister that a decision had been taken to issue a blanket ban on all political meetings due to the “ volatile situation prevailing in the countryâ€. Given the fact that the Minister has no right to issue blanket bans a decision was taken to defy the illegal banning of the meeting, whilst at the same time a challenge against the ban would be launched in the High Court.
An urgent court application was made seeking an interdict preventing the police from banning the meeting. One of the points raised was that section 25 (5) of POSA violates both sections 18 and 21 of the Zimbabwean Constitution. Section 25 (5) gives the Minister of Home Affairs the ultimate power to determine whether political meetings should be allowed to take place or not. It is common cause that the Minister of Home Affairs is also a politician (in the present case a politician who holds a very senior position in the ZANU PF party). To that extent the Minister of Home Affairs is not a neutral arbiter; indeed he is a person with an obvious bias.
Section 18 (9) of the Constitution of Zimbabwean states that “ every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations”. Section 25 (5) of POSA clearly violates this right as it gives a member of one political party the right to determine the affairs of another competing political party. This section also offends section 21 (1) of the Constitution which states that “no person shall be hindered in his freedom of assembly and association”. The power given to the Minister of Home Affairs in this regard is an unreasonable hindrance in the exercise of the right to freely assemble and associate.
Regrettably the situation was further compounded when the Registrar of the High Court in Bulawayo was unable to locate a single judge who could hear the urgent application. It is common cause that judges are expected to be available 24 hours a day and at the very least a duty judge should be readily available at all times. It should be stressed that this is a constitutional obligation. The same section 18 (9) in the Constitution states that everyone is entitled to “a fair hearing within a reasonable time”. It is a well established practice a duty judge should be in place at all times to hear urgent applications immediately. The absence of a duty judge in Bulawayo, either through dereliction of duty or through deliberate action, resulted in a serious breach of the MDC’s constitutional rights to seek an urgent interdict against the police and the Minister of Home Affairs. The Judge President is urged to investigate the matter and to discipline those responsible.
What happened in Harare over the weekend appears to confirm that the ZANU PF regime is determined to flout the rule of law. Unlike what happened in Bulawayo the MDC (Tsvangirai faction) was advised of the banning of its meeting scheduled for Sunday the 18th February 2007 early enough to lodge an application in the High Court during normal business hours. Commendably the High Court in Harare granted an application in favour of the MDC confirming that its meeting could go ahead. However in an apparent confirmation of the general directive advised to Secretary General Professor Welshman Ncube by the Minister of Home Affairs on Friday the 16th February 2007, that a general ban on political meetings had been imposed, it has now been reported that the police disregarded the High Court order and refused to allow the MDC to carry on with its meeting. Other news reports detail the deployment of hundreds of police officers in a determined effort to prevent the meeting from taking place.
If these news reports are correct, and we have no reason to doubt their veracity, the police must be condemned in the strongest possible terms for this flagrant disregard of an order granted by the High Court of Zimbabwe. In a statement I released last month I said “The truth is that the Judiciary will always be seen by Zanu PF as some cumbersome appendix which is necessary to maintain the façade of democracy and which on occasions can be useful in furthering a political goal. But the Judiciary will never be an institution which is revered by Zanu PF as an indispensable part of a Zimbabwean democracy”. Sadly the events of this past weekend provide further evidence that that statement is true.
The wanton violence used by the police against supporters of the opposition in both Bulawayo and Harare must also be condemned in the strongest possible terms.
In any normal functioning constitutional democracy the flagrant disregard of an order of court and its constitutional obligations by the police would result in the head of that police force being forced to resign. That of course will not happen in Zimbabwe because it is not a constitutional democracy. However we nevertheless call on both the Commissioner of Police and the Minister of Home Affairs to resign in view of the disgraceful events which have occurred in Zimbabwe this past weekend.
The Hon David Coltart MP
Shadow Justice Minister
Bulawayo
19th February 2007