Regulating the right to protest

Nick Mangwana Special Correspondent
One of the biggest duties and responsibilities of any government is the protection of its citizens and all those that fall within its jurisdiction.

Ironically, that protection is from other citizens. To ensure that human rights are not violated, there is the state and a whole industry of advocates and activists. The disconcerting thing about the human rights regimes is the tacit belief that the right to protest, petition or demonstrate has supremacy over any other right enshrined in our Constitution.

This is not only erroneous, but quite defective. In any country under the sun, the right to protest, demonstrate or petition has caveats and does not trump all other rights. In fact, there are safeguards to that right.

In Zimbabwe those safeguards are currently legislated in the Public Order and Security Act (POSA). This piece of legislation has been mired in controversy and hence has been amended many times in a bid to modernise it and address concerns that have been raised by stakeholders over the perceived controversies on its impact on the democratisation enhancement agenda.

Most recently, a new Bill whose eventual assent will lead to the repealing of POSA was gazetted by Government. This Bill is called the Maintenance of Peace and Order Bill. When assented to, it will be called the Maintenance of Peace and Order Act (MOPA). The raison d’être of this Bill is to repeal POSA and replace it with this Bill which is aligned to the Constitution, as well as to modernise the management of public gatherings in a adopting modern ideas and benchmark them with best practices in countries considered as the beacons of democracy.

Normally, when issues of democracy are mentioned, some people think of the West and closer to home, they think of South Africa. It is instructive to compare what is being proposed against sister legislation in those countries and their attendant practices.

It is an international standard to have legal provisions that regulate public assemblies, processions, protests or demonstrations. These must be fair enough to enable and facilitate the respect of the rights and interests of those who want to participate and those who choose not to participate. Both parties have an equity of these rights. In England and Wales, they regulate these processions and protests or demonstrations through the Public Order Act 1986.

Section 11 of this Act requires police to be given six days’ notice by the conveners before engaging in a demonstration or protest. The details required include name and address of at least one person organising it. This piece of legislation criminalises failure to give sufficient notice, or diverting from the notified route. The person(s) held responsible for these criminal acts will be the organisers of this procession. All this is found in Section 11 of the Public Order Act 1986.

A lot has been said in the Zimbabwean context about whether the police have rights to impose conditions on such demonstrations or protests. Section 12 of the Public Order Act in England and Wales empowers the police to impose conditions which help to prevent serious public disorder or “a serious disruption of the life of a community”.

The Zimbabwean Government gazetted Maintenance of Order and Peace Bill, whose Section 7 is not any different from its UK applicable counterpart, but with the Zimbabwean one being much more liberal. To follow logic from certain circles, it means that Zimbabwe has come up with a Bill that is much more democratic than that one in England and Wales.

This argument is further buttressed by Section 13 of the Public Order Act, which says that a chief of police who believes that a demonstration will result “in serious public disorder, shall apply to the council of the district for an order prohibiting for such period not exceeding three months”.

This means that police can apply for banning of demonstrations for up to three months in a certain area! The police in the UK has further powers which are alien to the hitherto demonised, but democratic Zimbabwe.

In England and Wales, the police can specify or limit the number of people that can actually participate in a demonstration. They can limit the duration and location of a demonstration.

The reasons for all this is to minimise the disruption of life for those choosing not to participate as well as to avoid “serious criminal damage or disruption to the life of the community”. Right now in Zimbabwe, there are those who are threatening community life by hold “crippling demonstrations”.

In that, they are threatening to bring mayhem to those that would have chosen not to participate. To use the language used by the British in their law, they are threatening to “cause a serious disruption to the life of the community”.

In all these assembles, there are provisions to prevent hate speech. When one looks at all these provisions, it is clear that Zimbabwe is one of the most liberal countries in the world on paper. Of course culturally, there is a lot that needs to be done to modernise attitudes, practices and culture. But then Britain is only one country. Let’s look at a couple more countries, starting with our neighbour South Africa.

In South Africa, the sister legislation to the envisaged MOPA is the Regulation of Gatherings Act No. 205 of 1993.

Under this Act, the right to assemble in public is asserted and the people doing so enjoy the protection of the state while doing so. They are to exercise such right peacefully and with due regard to the rights of others. To ensure that these responsibilities are upheld, “the convener of a gathering shall give notice in writing signed by him of the intended gathering in no later than seven days before the gathering.

This notice shall contain at least the following information;

“(a) The name, address and telephone and facsimile numbers, if any, of the convener and his deputy; (b) the name of the organisation or branch on whose behalf the gathering is convened or, if it is not so convened, a statement that it is convened by the convener; (c) the purpose of the gathering; (d) the time, duration and date of the gathering; (e) the place where the gathering is to be held; (f) the anticipated number of participants; (g) the proposed number and, where possible, the names of the marshals who will be appointed by the convener, and how the marshals will be distinguished from the other participants in the gathering;

(h) in the case of a gathering in the form of a procession —

(i) the exact and complete route of the procession;

(ii) the time when and the place at which participants in the procession are to assemble, and the time when and the place from which the procession is to commence;

(iii) the time when and the place where the procession is to end and the participants are to disperse; (iv) the manner in which the participants will be transported to the place of assembly and from the point of dispersal;

(v) the number and types of vehicles, if any, which are to form part of the procession;

(i) if notice is given later than seven days before the date on which the gathering is to be held, the reason why it was not given timeously;

(j) if a petition or any other document is to be handed over to any person, the place where and the person to whom it is to be handed over.”

In the space left, let us look at what the United States have in place in managing these gatherings.

Comparing the above to Section 7 of Zimbabwe’s Maintenance of Peace and Order Bill shows that there is a lot of benchmarking with the South African Act as there are a serious resemblance to a level of nearly a word-for-word match with sections 3, 4 and 5 of the South African Act.

Moving to the United States, the same regulations are also applied to public gatherings or processions. The government may impose reasonable restrictions on the time, place, and manner of your event in order to reduce the amount of disruption it will cause.

Cities may charge for the actual costs of a demonstration, including the costs of processing permits, traffic control, certain narrow insurance requirements and some clean-up costs. In New York, the city can and does impose certain restrictions on these activities, and in some instances one must obtain a permit before engaging in certain activity.

To march in a street, you must obtain a permit from the Police Department. If you expect to have fewer than 1 000 people in your march, you can apply for a permit at the precinct in which the march will originate. The Police Department designates all demonstration areas and has the right to place a group in sight and sound of the targeted location.

One has to compare this to the Zimbabwean scenario, where people decide to come to the door of Munhumutapa Building or sing and toy-toy beating drums to the Supreme Court.

In California they have the “public nuisance laws”. Under Penal Code 372 and 373a PC, it a crime to create a public nuisance that interferes with the public use of a street, highway, park or square. So demonstrations are kept away from these.

A public nuisance is defined as an activity or situation that is offensive to the senses, injurious to health or indecent. Certain forms of assembly, such as those that involve provocative behaviour or loud noise, could lead to charges of creating a public nuisance. This crime is a misdemeanour, with a maximum county jail sentence of six months.

These are the standards which Zimbabwe is happy to be judged by. It helps to check the principles under which Maintenance of Peace and Order Bill against those used in any democratic country where the rule of law obtains.

It is important to note that this Bill that was gazetted on the 19th of April 2019, is yet to go before Parliament, which is the legislative arm of the State in charge of lawmaking. This is the proposal from the Executive.

The Constitution obligates Parliament to carry out public consultations through outreach programmes in order to glean public views on the said legislative reforms. Then the legislators themselves will subject it to debate during several readings.

This will, in all probability, lead to one of the most democratic, sensible modern public order Acts in circulation in the world.

Any government worth the name has an obligation to maintain law and order. All constitutional rights citizens are entitled to can only be enjoyed when there is no anarchy and disorder.

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