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Balance right to demonstrate with responsibility: Mugadza

In the wake of recent demonstrations that have rocked parts of the country, The Herald Senior Writer Elliot Ziwira (EZ) interviewed Dr Willard Tawonezvi Mugadza (WTM), a legal expert in Public Procurement, Corruption, International Trade, Governance and Policy, and has done work for the World Bank Group, African Development Bank and Transparency International, to get insights on the impact and legal implications of the disturbances, among other issues.

EZ: Our nation has been rocked by demonstrations, which in some cases have turned violent, with experts estimating that our economy may have been set back in the region of $300 million. From a constitutional perspective, how would demonstrations be dealt with to ensure citizens express whatever their discontent without hurting the economy and others in the process?
WTM:
 It is important to understand the whole aspect of democracy, which gave birth to the right to demonstrate, which is now internationally recognised, and constitutionally guaranteed in Section 59 of the Constitution of Zimbabwe Amendment (No 20) Act of 2013. Democracy as a form of government has never been understood and may never be understood from its inception during the Greeks’ period around 500 BC. It was a form of government that did not bring much joy to its founders, yet, we are still pursuing democracy over 2 000 years later.

Even the oldest democracy in the world, the United States of America, has demonstrated over the years that democracy has more weaknesses than strengths. The challenges that the US is facing currently, which are demonstrated through unparalleled divisions testify to the failures of democracy.

Africa has tried and is failing to fit into the shoes of democracy. Remember, democracy did not come from God, but is a man-made form of government, which has so far proved elusive. So as a small nation, we were swept away by the so-called democracy, and sadly we find ourselves questioning whether the experiences that we go through as a nation are democratic. In our preamble, we boast by saying that: “Recognising the need to entrench democracy. . .” – there is no nation that has ever entrenched democracy.

Therefore, the earlier we realise this the better. It is important to know that there are numerous forms of government such as theocracy, monarchy and aristocracy to mention just a few. Most recently, Professor Jason Brennan wrote a book titled “Against Democracy” — where he advocates Epistocracy as another form of government. Not that I am advocating Epistocracy, but, Prof Brennan, exposes the weaknesses of democracy. These weaknesses have brought us as Zimbabweans much sadness over the years.

My submission is that democracy gives rights to people that are irresponsible and selfish. How do I come to this conclusion — one examines the results of democracy globally over the years — there seems to be no good story to tell from and about democracy.

Therefore, from a Constitutional perspective — demonstrations being a right derived from democracy — only peaceful demonstrations are permitted. The onus in any country is on the “callers” of demonstrations to ensure that they take all the necessary measures to guarantee that the demonstrations remain peaceful — whether they are for a few hours, few days, and few weeks as we have seen in France. Callers of demonstrations must always do a proper due diligence — which I think lacked in the recent demonstrations. Foresight leads to proper planning and the police as well as other security apparatus should ensure that if they are informed of a lawful and peaceful demonstration, they must facilitate and guarantee that security will be put in place for the realisation of the requested peaceful demonstration.

The right to demonstrate must be balanced with the responsibility to demonstrate peacefully.

Further, property rights must be protected at all costs by all stakeholders in the demonstration “proceedings”. Demonstrations will always hurt the economy one way or the other. However, it is important to ensure that minimum damage to the economy is done depending on the nature of the demonstration and astuteness on the part of leaders of the demonstration.

We must refrain from inflaming the anger of others during any demonstration, or even undermine the right to demonstrate. We have chosen the path of democracy, as such we must embrace and walk it (both the good and the bad). We have to contextualise democracy within our own unique historical and futuristic developments as a people. We have only one nation to build and live in — and responsibly — in particular unconditional genuine dialogue may save us from the pain that we are going through as a nation. The recent events have produced no winner and such acts will never produce a winner — we as a people always lose.

EZ: Demonstrations are usually ignited by socio-economic and socio-political considerations. In your view, how can citizens cut of different political persuasions be enlightened on the legal and socio-economic implications of their actions?
WTM:
 Every helicopter flies, but will land at some point. Violent demonstrations cannot be sustained. Even peaceful demonstrations are equally difficult to sustain. What I have witnessed is that, the lack of education on the generality of citizens contributes much to the unbridled desires of politicians. The uninformed are generally taken advantage of by mostly power-hungry politicians, and other selfish people or organisations to demonstrate violently without fully appreciating the consequences.

In the end, the less-informed and vulnerable will languish in prisons after being convicted for various criminal activities that take place during violent demonstrations. This we have seen in Zimbabwe and other countries — the brains behind violent demonstrations stand behind the scenes, and pretend as if they had nothing to do with it. This in my opinion is absolute dishonesty from the leaders (political or otherwise).

It is prudent to avoid the violent demonstrations by timely engaging and addressing the socio-economic and socio-political challenges of citizens. It is not wise for the Government, especially to be reactionary either through salary increases (as is the current case) or other interventions. The Government must learn from the just-ended disturbances to genuinely engage citizens through the various forums available.

The new dispensation had started well by listening to citizens, and I think they must continue to have an open-door policy in order to reach out and experience the realities of citizens. For example, the Government could have gradually enacted the 2 percent tax, say starting with 0,5 percent every quarter until the 2 percent is fully implemented. In the same vein, the fuel increase could have equally been gradual (50 percent quarterly, starting in April) bearing in mind the already burdened citizens.

Therefore, we must learn with great speed from what happened and engage with proper nation-building initiatives. Transparency and inclusivity is key and all hope is not lost. For example, citizens have been asking the Government to scrap the bond note or dollarise or join the Rand Union. The time is now for the Government to do so — there is no need for another demonstration (peaceful or otherwise) to get the Government to react. This can be done in an instant through genuine dialogue.

EZ: Social media has become not only a means of communication, but a way of life globally. However, it has also been known to be abused and used to peddle falsehoods, culminating in heightened emotions. How do we achieve balance between Internet freedom and cyber communication and security?
WTM:
 Cyber communication and security is a reality and a challenge globally. Wisdom requires governments to enact proper legal framework and institutions that are there to police and hold to account those responsible for the abuse of cyber space.

Shutting down the Internet may indicate the lack of preparedness on the part of Government to deal with the menace that emanates from the Internet.

The Government must take into account that there are researchers and other people who use the Internet for various productive ends other than to engage in nefarious communications. This should be the work of the intelligence. They can be on top of the situation if they are properly trained. I think it is an opportunity for the security apparatus to be well-equipped in the area of cyber communication and security.

The Internet blackout did not add value to the stature of the Government. It was retrogressive in my view.

As an expert in International Trade, I think the Internet blackout is quite retrogressive, and may haunt the administration in future. It will always be a question that serious investors will require addressed as a matter of urgency.

However, the Government may counter any backlash by issuing an apology, through local and international media. This must be coupled with a commitment that it will never happen again. Otherwise investors are not attracted by such actions.

EZ: What is the position of the law in terms of compensation of victims and cyber use?
WTM:
 The issue of compensation of victims of cyber bullying or defamation is not a well settled area at law. This is mainly because of the legal technicalities that are involved as well as identity theft, which makes it extremely difficult to litigate. The admissibility of evidence and the weight of such evidence is quite cumbersome for most legal practitioners internationally and locally.

In some cases, one may be required to go to service providers such as WhatsApp, Facebook, Google and other service providers, which is a costly exercise. Other people may intentionally defame, post fake news etc. and argue that their accounts were hacked. This and other avenues make cyber communication and security a major challenge for most countries. Again, as I said earlier, these are some of the challenges that come with democracy and we have chosen that path — so we must walk along it with its consequences.

However, legal avenues remain for one to pursue and recover, mostly when it comes to damages.

Source : The Herald

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