Case Summary and Outcome

The Zimbabwe Constitutional Court held that a provision in the Public Order and Security Act, which allowed police officers to issue blanket bans on future demonstrations in specific geographical areas for up to one month, was an unjustifiable limitation on the right to demonstrate and present petitions. A Zimbabwean NGO challenged the provision after a police officer in the Harare Central Police District prohibited demonstrations in the district for a period of two weeks in September 2016. The Court found that the provision had the potential of “negating or nullifying the rights not only completely but perpetually” and was an unfair and irrational limitation on the right as it allowed police officers to pre-emptively prohibit all demonstrations, irrespective of their nature or scope.

Facts

On September 1, 2016, Newbert Saunyama, a police officer in the Harare Central Police District, issued a notice pursuant to the powers conferred on him by section 27 of the Public Order and Security Act (Act). This provision stated that all public processions or demonstrations within the Harare Central Police District were prohibited for a period of two weeks. Section 27 of the Act provided that “[i]f a regulating authority for any area believes on reasonable grounds that the powers conferred by section 26 will not be sufficient to prevent public disorder being occasioned by the holding of processions or public demonstrations or any class thereof in the area or any part thereof, he may issue an order prohibiting, for a specified period not exceeding one month, the holding of all public demonstrations or any class of public demonstrations in the area or part thereof concerned”. [p. 2] Section 26 of the Act allowed the regulatory authority to consult and negotiate with demonstration organizers and impose conditions on processions and demonstrations.

The day after the notice was published, the Democratic Assembly for Restoration and Empowerment (DARE) filed an urgent application before the Harare High Court seeking the suspension of the notice pending the determination of the constitutionality of section 27 of the Act.

On September 16, 2016, Mr. Saunyama published a second notice prohibiting all processions and demonstrations within the Harare Central Police District for a period of one month.

On September 23, 2016, the High Court issued a provisional order, suspending the initial notice prohibiting the public demonstrations and postponing the determination of the constitutional issue.

DARE brought a second urgent application before the same court seeking a suspension of the second notice and for the initial provisional order to be made permanent. The High Court consolidated these two cases, and held that section 27 of the Act was constitutional and that both notices were lawful.

DARE appealed the High Court’s decision to the Supreme Court of Zimbabwe, and the Supreme Court then referred the question of the constitutionality of section 27 of the Act to the Constitutional Court of Zimbabwe.

Decision Overview

Makarau JCC delivered the judgment of the unanimous Constitutional Court of Zimbabwe (Court). The central issue before the Court was whether the manner in which section 27 of the Public Order and Security Act (Act) limited the right to demonstrate and petition was justifiable under the Constitution of Zimbabwe.

Mr. Saunyama argued that the marches organized by DARE in the past had been violent and that the prohibitions under section 27 of the Act were necessary to secure public safety. He added that the prohibitions appropriately balanced the right to demonstrate with the rights of citizens who had lost livelihoods in previous demonstrations. The focus of Mr. Saunyama’s argument was on the need to prevent violent demonstrations and he did not argue that section 27 of the Act empowered him to prohibit peaceful demonstrations and petitions.

Section 59 of the Constitution protected the right to demonstrate and petition and stated that “[e]very person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully”.

Makarau JCC recognized the importance of the right to demonstrate and to present petitions. She noted that it had been recognized “as one of the rights that form the foundation of a democratic state” and that “the attainment of the right to demonstrate and to present petitions was among those civil liberties for which the war of liberation in this country was waged”. [p. 7] She added that “protests and mass demonstrations remain one of the most vivid ways of the public coming together to express an opinion in support of or in opposition to a position” and that “the right to demonstrate creates space for individuals to coalesce around an issue and speak with a voice that is louder than the individual voices of the demonstrators”. [p. 7-8] In recognizing the central role that demonstrations play in a democracy, she reasoned that “[d]emonstrations have thus become an acceptable platform of public engagement and a medium of communication on issues of a public nature in open societies based on justice and freedom”. [p. 8]

Makarau JCC undertook a thorough examination of the nature of the right under section 59 of the Constitution. She noted that the structure of the constitutional provision explicitly limited the exercise of this right to situations where demonstrations and petitions are done peacefully, and that “the rights enshrined in s 59 of the Constitution then, in simple terms, become the right to demonstrate peacefully and the right to present petitions peacefully”. [p. 5] She refused to read the right as being separate to the admonition (that the right be exercised peacefully), since this alternative interpretation would have led to possible protection of violent demonstrations. [p. 5] Makarau JCC emphasized that the general limitation clause entrenches the principle that “fundamental rights and freedoms granted to every person must always be exercised with due regard for the rights and freedoms of other persons” and that “[v]iolence intrinsically has the effect of violating other persons rights, either in their liberty, bodily integrity or in their property”. [p. 5-6] Accordingly, she reasoned that “where the demonstration or petition is violent, the conduct of the demonstrators or petitioners loses the protection of the Constitution and becomes subject to the provisions of general law.” [p. 6]

The Court found that section 27 of the Act interfered with the rights under section 59 of the Constitution because the “effect of s 27 is to give wide discretion to a regulating authority to abridge the two rights”. [p. 9] The question then was whether that infringement was justified by section 86(2) of the Constitution – the general limitation clause.

At the outset of this inquiry, Makarau JCC referred to the Zimbabwean case of James v. Zimbabwe Electoral Commission, which confirmed that courts must apply the principles established under the previous Constitution in respect of analyses into the limitation of rights. Makarau JCC noted that the limitation analysis was based on two principles: a “presumption in favour of constitutionality” and that a limitation should not amount to the denial of the right. The application of these two principles ensured that the Constitution is given primacy and that limitations to the rights are interpreted narrowly. She explained that this ensured that “the court venerates the fundamental right or freedom as primary while regarding the limitation as secondary”. [p. 12]

She explained that the limitation analysis had four yardsticks: fairness, reasonableness, necessity and justifiability. She applied these standards to section 27 of the Act and noted that the blanket effect of the bans did not “discriminate between known and yet to be planned demonstrations”. [p. 14] This had the effect of denying the rights in advance and condemning all demonstrations and petitions before their purpose or nature was known. She added that it “does not leave scope for limiting each demonstration according to its circumstances and only prohibiting those that deserve to be prohibited while allowing those that do not offend against some objective criteria set by the regulating authority to proceed”. [p. 15] Accordingly, she held that, by stereotyping demonstrations as being unworthy of protection, section 27 of the Act was “not only unfair but irrational”. [p. 15]

Makarau JCC that Mr. Saunyama had conceded that the limitation in section 27 of the Act was “excessive and disproportionate to the purpose for which it [was] intended” and that it was, therefore, “an unreasonable reaction to a situation that can be managed by other and less restrictive means”. [p. 15] She disagreed with the High Court which had held that the geographical and temporal limitations in section 27 of the Act rendered it constitutional. She held that “[i]t matters not that the ban may be limited both geographically and in terms of time, a blanket or dragnet ban is neither fair, reasonable nor necessary. It is irrational”. [p. 16] Accordingly, she conceded that section 27 of the Act was “not only inappropriate but unnecessary to contain and police peaceful demonstrations and petitions”. [p. 16]

Makarau JCC added that she was disturbed by the lack of limitation on how many times section 27 of the Act could be utilized and noted that there was nothing to prevent authorities from issuing new bans as soon as the initial ones expired. This meant that the provision had “the potential of negating or nullifying the rights not only completely but perpetually”. [p. 17]

Makarau JCC, therefore, declared section 27 of the Act unconstitutional and suspended the declaration of unconstitutionally for six months to allow Parliament to remedy the defects.