3. PRESENTATION, INTERPRETATION AND ANALYSIS
3.2 Public Order And Security Act 2002 (POSA)
The Public Order and Security Act (POSA) is a piece of legislation introduced in Zimbabwe in 2002 by a ZANU-PF dominated parliament. The Act was amended in 2007. The chief architects of the Act when it was formulated were Jonathan Moyo and Patrick Chinamasa. Many regard POSA as an Act that helped Robert Mugabe consolidate his power. The law gave untold powers to the police, the Zimbabwe Republic Police (ZRP). The draconian Public Order and Security
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Act (POSA) is set for amendment following the proposition of a Private Members’ Bill supported by Mutare Central Member of Parliament, Innocent Gonese. Amendments are targeted to remove harsh provisions of the law. The proposed amendment comes at the backdrop of a stuttering constitutional reform process that has failed to be rolled out. The Parliamentary Portfolio Committee on Home Affairs and Defence chairperson and Glen View South Member of Parliament, Paul Madzore said the committee plans to hold nationwide consultations to seek for people’s views on the proposed amendments.
Defending the Private Member’s Bill during a committee hearing convened to solicit his response to concerns raised by officials from the Ministry of Home Affairs; Gonese disputed claims that “the Bill is contrary to the Global Political Agreement (GPA)”. He noted that “whilst the GPA is committed to the freedom of association and assembly, POSA on the other hand limits freedoms by placing inordinately wide and sweeping powers in the hands of officers of the Zimbabwe Republic Police (ZRP)” (Darnolt and Laakso 2003: 219). Enacted in 2002, POSA has been excessively used by the police to curtail freedom of association and assembly. The proposed bill now seeks to vest the powers to prohibit public gathering in the hands of Magistrates, and will also seek to redefine public gathering so as to be relevant only to those gatherings which pose a threat to public safety.
According to the proposed bill, “the regulating authority will only be able to apply to a judicial officer to impose conditions on a public gathering, rather than arbitrarily restrict peaceful protests” (Raftopoulos and Mlambo, 2009: 214 and 224). Gonese has dismissed the assertion by the Home Affairs’ officials that the Bill is a negation of the doctrine of Separation of Powers and proved to the portfolio committee that the Constitution of Zimbabwe provides for the introduction of Private Member Bills, as do the Standing Orders and Rules of Parliament.
Since its enactment, the State has not achieved a single conviction on cases brought on the strength of the harsh provisions of POSA proving the failure by the police to correctly interpret and apply the law.
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According to POSA, the organisers of a public gathering shall give at least four clear days’
written notice of the holding of the gathering to the regulating authority for the area in which the gathering is to be held: Provided that the regulating authority may, in his discretion, permit shorter notice to be given. For the avoidance of doubt, it is declared that the purpose of the notice is required by subsection:
(a) to afford the regulating authority a reasonable opportunity of anticipating or preventing any public disorder or a breach of the peace; and Public Order and Security Act (Chapter 11:17) as amended in 1st March, 2007.
(b) to facilitate co-operation between the Police Force and the organiser of the gathering concerned; and
(c) to ensure that the gathering concerned does not unduly interfere with the rights of others or lead to an obstruction of traffic, a breach of the peace or public disorder.
Furthermore, any Saturday, Sunday or public holiday falling within the four-day period of notice referred to in subsection (1) shall be counted as part of the period, where there are two or more organisers of a public gathering, the giving of notice by any one of them in terms of subsection (1) shall be a discharge of the duty imposed upon the other or others by that subsection, this section shall not apply to public gatherings of a class described in the Schedule. Lastly, any organiser of a public gathering who fails to notify the regulating authority for the area of the gathering in accordance with subsection (1) shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
The Public Order and Security Act (POSA) were enacted on 10 January 2002, just before the presidential elections of 2002. POSA was condemned by lawyers, human rights activists and journalists on the grounds that it contained several of the anti-democratic features of the Law and Order Maintenance Act (LOMA) which had been introduced by the colonial authorities in 1960.
LOMA was widely used by the Rhodesian authorities to suppress civil dissent and many nationalists, including President Robert Mugabe, were victims of this repressive legislation, being detained for periods ranging up to many years. “The Act severely restricts freedom of
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assembly and movement, and provides the police with wide discretionary powers” (Darnolf and Laakso, 2003: 211).
3.2.1. Aims and objectives of POSA
The police may prohibit demonstrations in an area for up to three months if they believe this is necessary to prevent public disorder. Public gatherings will not be allowed unless seven days notice is given to the police. The police are allowed to take measures including lethal measures to suppress an unlawful public meeting. POSA also contains a number of provisions restricting freedom of expression. POSA further indicated that it is an offence to publish or communicate false statements which may be prejudicial to very broadly defined State interests, in the absence of reasonable grounds for believing they are true. According POSA it is a crime, punishable by imprisonment of up to a year, to make statements “knowing or realising that there is a risk or possibility” of engendering feelings of hostility towards, or cause hatred, contempt or ridicule of, the president (Hill, 2003: 168).