POLICE have resorted to the use of the new piece of legislation, Maintenance of Peace and Order Act to scuttle opposition party gatherings following repeal of the Public Order and Security Act (POSA) which was discarded for not being in line with the Constitution and therefore draconian.
BRENNA MATENDERE
Several rallies which had been scheduled for last weekend by the Citizens Coalition for Change (CCC) party, were banned by the police citing provisions of the law which, when it was gazzated, was celebrated as an example of how the regime was implementing electoral reforms to provide for free and fair polls.
In a case in particular, police Chief Superintended H Masvivi, who is the regulating authority for Murehwa District, cited the new law as the reason why he could not authorize holding of a CCC rally at Nhakiwa Business Centre in Uzumba on 12 February 2023.
In a letter written to CCC coordinator for Uzumba, Moyazizwe Nxumalo, Masvivi wrote: “Thank you for your writing to us but be informed that the gathering cannot go ahead as the notification does not fully comply with the requirements of the law in particular Section 7 (1) (b) of the Mantainance of Peace and Order Act, Chapter 11:23 which governs notices of public meetings. Your cooperation is highly anticipated.”
Other police regulating authorities in more than 50 other districts used the same law to ban the CCC rallies which had been set for the same date.
MOPA came into effect in November 2019 after President Emmerson Mnangagwa assented to it ostensibly to replace the repealed POSA which had been discredited as unfit for a country like Zimbabwe which is a constitutional democracy.
POSA was used to clamp down on opposition supporters under the late President Robert Mugabe’s.
Recently, research findings in a journal titled The Journal of Democracy, Governance and Human Rights in Zimbabwe, which was put together by the Zimbabwe Human Rights NGO Forum and its partners, warned that MOPA would replace POSA in closing the democratic space.
Part of the journal reads: “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 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 journal also revealed how MOPA will curtail demonstrations during the imminent election period.
“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 report says.
“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’”
Section 7(5) and Section 8(11) of MOPA criminalise non-compliance with its provisions.
“Failure to notify attracts a level twelve fine and or 6 months imprisonment whilst non-compliance with a prohibition notice carries a level 14 fine and or imprisonment for a period not exceeding a year,” the report highlights.
“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.”
The journal also buttresses its criticism of MOPA by highlights further that the legilsation has already been condemned by the United Nations and one of the country’s independent commissions.
MOPA has been condemned for failing to 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,” the report 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’…”
