NEW research by the Democratic Governance and Rights Unit (DGRU) has demonstrated how the Maintenance of Peace and Order Act (Mopa) militates against free and fair elections more than the draconian Public Order and Security Act (Posa) which was repealed for violating provisions of the constitution, by stifling political gatherings among other shortcomings.
The research findings are in a journal titled The Journal of Democracy, Governance and Human Rights in Zimbabwe, which was compiled in conjunction with the Zimbabwe Human Rights NGO Forum, University of Cape Town and University of Zimbabwe.
Mopa came into effect in November 2019 after President Emmerson Mnangagwa assented to it ostensibly to replace the repealed Posa which had been discredited as unfit for a country like Zimbabwe which claims to be a constitutional democracy.
Posa had seen the police using it to clamp down on opposition supporters during president Robert Mugabe’s rule, on trumped-up charges of violating public order and state security.
However, the new research shows that the law will be worse than Posa in demobilising opposition parties like the Nelson Chamisa-led Citizens’ Coalition for Change.
The journal says Mopa has sections that will disrupt political gatherings in a subtle way in violation of the guidelines on freedom of association and assembly in Africa.
“Notably, Section 7(1) (a) and (b) of Mopa requires convenors of gatherings to give a minimum of 7-days and 5-days’ notice of their intention to conduct demonstrations and public meetings respectively,” the journal says.
“The Guidelines on Freedom of Association and Assembly in Africa recommend that, ‘any notice period shall be as short as possible’ and that it should be, ‘48 hours and not more than 5 days’.
“Zimbabwe’s notice period is therefore longer than recommended under international law. The notification period can even extend to 14 days.”
The research also says Mopa curtails demonstrations.
“This is because the regulating authority can schedule a negotiation meeting with the convener within seven days of receipt of the notification. This provision fails to recognise the different ways of exercising the freedom of association and assembly, for example with spontaneous demonstrations,” the journal reads.
“The policing of such demonstrations has never been human rights-compliant and thus earning the Zimbabwe Republic Police notoriety for its heavy handedness when thwarting gatherings.
“Mopa’s failure to provide exceptions has the effect of restricting freedom of assembly and association more so during elections, where the likelihood for spontaneous peaceful gatherings and or demonstrations is high.”
“The UN Special Rapporteur on the rights to peaceful assembly and association pointed out that, ‘The right to freedom of peaceful assembly protects the ability of individuals to protest election results to which they object, including on the grounds that those results appear to be fraudulent, and including when such protests occur spontaneously’.”
The journal says section 7(5) and section 8(11) of Mopa criminalise non-compliance with its provisions and attracts a Level 12 fine and or six months’ imprisonment.
Non-compliance with a prohibition notice carries a Level 14 fine and/or imprisonment for a period not exceeding a year.
The researchers say the punishment is excessive.
“Criminal liability for breach of procedural requirements in exercising a right is not a necessary and reasonable limitation as required by Section 86(2) of the Constitution as well as international human rights law.
“The possibility of arrest and imprisonment is excessive and has the effect of deterring people from organising or participating in peaceful gatherings. Mopa does not provide for accountability where the police fail to comply with its provisions, for example not complying with Section 13 when controlling gatherings resulting in injuries and deaths,” reads the journal.
The journal further highlights that the legislation has been condemned by the United Nations and one of the country’s independent commissions.
“Mopa remains a repressive law that does not enable freedom of association and assembly. The Zimbabwe Human Rights Commission in its Report to the Human Rights Council voiced concern that the Mopa remains restrictive and needs further review,” it reads.
“Referring to Mopa, the UN Special Rapporteur on Freedom of Association and Assembly who visited Zimbabwe in 2019 noted that, ‘. . . the newly established legal framework does not address long-underlying concerns and is not conducive to free and unhindered exercise of the right to freedom of peaceful assembly, negatively affecting the exercise of the rights to freedom of association and expression’.”