MAKARAU
JCC:
INTRODUCTION
On
4 July 2017, the Supreme Court, acting in terms of section 175(4) of
the Constitution referred a constitutional matter to this Court. The
essence of its order is to seek from this Court an answer to the
question whether or not section 27 of the Public Order and Security
Act [Chapter 7.11], (POSA) is constitutional.
THE
FACTUAL BACKGROUND
The
facts giving rise to the constitutional matter are common cause. I
set them out hereunder.
On
1 September 2016, the first respondent published a statutory
instrument in terms of which he, acting in his capacity as the
regulating authority for the Harare Central Police District, banned
for a period of two weeks, the holding of any public processions or
demonstrations within the Harare Central Police District. In acting
as he did, the first respondent relied on the provisions of section
27 of POSA which in subs (1) provides:
“27(1)
If 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.”
On
2 September 2016, a day after the publication of the Statutory
Instrument, the applicants approached the High Court at Harare on a
certificate of urgency, seeking the suspension of the statutory
instrument pending the determination of, among other issues, the
constitutional validity of section 27 of POSA. The other challenges
mounted by the applicants against the ban are not germane to the
question before this Court.
The
respondents opposed the application.
They
contended, in the main, that marches organised by the applicants in
the past had not been peaceful and had led to the destruction of
property. It was their position that the statutory instrument under
challenge was published for the safety and security of the nation and
was a fair and reasonable prohibition, balancing the rights of the
applicants to demonstrate against the rights of those citizens who
had lost their livelihood during the previous demonstrations.
On
23 September 2016, the High Court granted the provisional order
sought thereby suspending the operation of the ban. Part of the terms
of the final order sought by the applicants, to be confirmed on the
return day, was the constitutional validity of section 27 of POSA.
Ten
days prior to the handing down of the High Court judgment, on 13
September 2016 to be precise, the first respondent had published in
the Government Gazette and in one newspaper enjoying national
circulation, a notice proposing to ban, for a period of one month,
processions and demonstrations within the Harare Central Police
District.
On
16 September, he had proceeded to publish the Notice and Proclamation
banning all processions and demonstrations in the Harare Central
Police District for a period of one month.
The
applicants returned to the High Court on yet another certificate of
urgency, seeking the suspension of the Notice and Proclamation and
now also praying for the provisional order granted on 23 September
2016 to be set down on an urgent basis for its confirmation or
discharge.
Another
applicant, who is not a party to the application before this Court,
also approached the court separately but similarly challenging the
Notice and Proclamation and seeking similar relief.
Both
applications were opposed.
The
hearings of the two applications and the return day of the
provisional order granted on 23 September 2016 were consolidated.
At
the hearing of the consolidated matters, the High Court, firstly,
considered whether or not section 27 of POSA was constitutional,
which it found to be, before proceeding to uphold the validity of the
Notice and Proclamation. As a consequence, it dismissed the
applications.
The
applicants noted an appeal to the Supreme Court against the dismissal
of the applications. During the hearing of the appeal, the Supreme
Court referred to this Court the question I have set out above.
Against
this factual backdrop, I will proceed to answer the question referred
to this Court by the Supreme Court.
In
answering the question, I will confine myself to an analysis of the
rights or freedoms that were limited by the first respondent using
the powers granted to him by section 27 of POSA.
I
do so notwithstanding that counsel for the applicants has made broad
submissions impugning the limitation in section 27 of POSA generally
and against a number of other fundamental rights and freedoms
enshrined in the Constitution.
THE
CONSTITUTIONAL PROVISION
The
fundamental rights whose enjoyment was limited by the first
respondent are the freedom to demonstrate and to petition. These
rights are enshrined in section 59 of the Constitution in very
precise and concise terms as follows:
“59
Freedom to demonstrate and petition
Every
person has the right to demonstrate and to present petitions, but
these rights must be exercised peacefully.”
Quite
obviously, the rights that are guaranteed by the Constitution in
section 59 are the right to demonstrate and the right to present
petitions. Noteworthy however is that in the same provision that it
enshrines these two rights, the Constitution also admonishes that the
rights must be exercised peacefully.
I
venture to hold that by the very manner in which the rights and the
admonition are given not only in the same provision but literally in
the same breath, both the rights and the admonition must be given
equal primacy.
In
other words, the rights and the admonition must be placed on an equal
footing and must be read together as giving the complete content of
the rights.
Taking
this approach, the rights enshrined in section 59 of the Constitution
then, in simple terms, become the right to demonstrate peacefully and
the right to present petitions peacefully.
The
approach I have taken to read the rights and the admonition together
and as one is to be contrasted with an alternative approach where I
could have given the rights supremacy over the admonition. Under such
an approach, the rights would have been read separately with the
admonition acting as a limitation, presumably an in-built one.
Taking
the second approach would have resulted among other things in
venerating the rights without qualification, and prima facie,
venerating even violent demonstrations and the violent presentation
of petitions. It would have also resulted, as indicated above, in
subjecting the rights firstly to an in-built limitation and
thereafter, to the general limitation provided for in section 86(2)
of the Constitution.
I
have shied away from adopting the alternative approach as, in my
view, and, in the main, one cannot imagine a law that would
countenance the holding of violent demonstrations and the violent
presentation of petitions as protected rights. Violence intrinsically
has the effect of violating other persons rights, either in their
liberty, bodily integrity or in their property.
The
enjoyment of fundamental rights and freedoms is universally subject
to one general rule.
The
rule is that the fundamental rights and freedoms granted to every
person must always be exercised with due regard for the rights and
freedoms of other persons.
This
Rule, which has been part of our constitutional jurisprudence for
decades, has been entrenched in section 86(1) of our Constitution.
It
therefore presents itself clearly to me that to grant an unqualified
right to demonstrate and petition, thereby, on the face of it,
constitutionally allowing for violent demonstrations and petitions,
would be inimical to many of the rights enshrined in the
Constitution.
No
constitution, properly constructed, can be read as granting a right
or freedom that clearly affronts the rights and freedoms of others.
Ours is no exception.
It
is on this basis that I hold that the rights granted by section 59 of
the Constitution and the accompanying admonition to exercise such
rights peacefully must be read together as forming the contents of
the rights.
An
important consequence flows from reading the rights and admonition in
section 59 as one. It is this:
The
rights granted and guaranteed by the section are the right to
demonstrate and the right to petition peacefully. In other words, the
rights are protectable only when exercised peacefully. Consequently,
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.
THE
CONTENT OF THE RIGHTS
Accepting,
as I do, that the rights that are protected under section 59 are the
right to demonstrate peacefully and the right to peacefully present a
petition, one issue that has exercised my mind is whether it is then
necessary to further limit the rights.
In
view of the position that has been taken by the respondents in this
matter, this issue is largely an academic and idle question that does
not require an answer for the purposes of this judgment.
It
was never the contention of the respondents that the measures taken
by the first respondent were in response to peaceful demonstrations.
To the contrary, the papers filed in the High Court, in opposition to
all the applications, recalled and emphasised the violence that had
accompanied the earlier demonstrations by some of the applicants as a
basis for imposing the ban.
Thus,
in the collective view of the respondents, the first respondent was
responding to the past violent demonstrations by imposing a ban on
all future demonstrations for a period of one month.
At
no stage did the respondents contend that section 27 of POSA can be
invoked to prohibit peaceful demonstrations and peaceful presentation
of petitions.
That
issue aside, the right to demonstrate and to present petitions was
recognised by the High Court as one of the rights that form the
foundation of a democratic state.
I
cannot agree more.
I
am also in full agreement with the observation of the High Court 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 and that these two rights are included in the
fundamental rights referred to in the preamble to the Constitution.
To
these observations that are peculiar to this jurisdiction as observed
by the High Court, I may add on a general note 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.
Whilst
protests and public demonstrations are largely regarded as a means of
political engagement, not all protests and mass demonstrations are
for political purposes. One can take judicial notice of, in the
recent past, a number of public demonstrations that were not
political but were on such cross cutting issues as the environment,
and/or the rights of women and children.
Long
after the demonstrations, and long after the faces of the
demonstrators are forgotten, the messages and the purposes of the
demonstrations remain as a reminder of public outrage at, or
condemnation or support of an issue or policy.
Clearly,
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.
As
is intended, demonstrations bring visibility to issues of public
concern more vividly than individually communicated complaints or
compliments to public authorities. Demonstrations 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.
THE
INFRINGEMENT
It
is beyond dispute that section 27 of POSA has the effect of
infringing the rights granted by section 59 of the Constitution. The
High Court correctly found so. One would venture to suggest that
section 27 provides a classic example of a law whose effect infringes
the fundamental rights in issue in this matter.
The
test to determine whether a law infringes a fundamental right was
laid out by GUBBAY CJ in In re Mhunhumeso (supra) at page 62F as
follows:
“The
test in determining whether an enactment infringes a fundamental
freedom is to examine its effect and not its object or subject
matter. If the effect of the impugned law is to abridge a fundamental
freedom, its object or subject matter will be irrelevant.” (The
emphasis is not mine).
Clearly,
the effect of section 27 is to give wide discretion to a regulating
authority to abridge the two rights. He or she can impose a blanket
ban for up to one month if he or she believes on reasonable grounds
that he will not be able to prevent violence from breaking out.
During
the currency of the ban, the two rights are completely negated.
In
my view, it matters not that the ban may be imposed only in relation
to a class of demonstrations. The effect remains the same in relation
to that class of demonstrations. They are all banned. This is
regardless of the purpose, size or organisation of the demonstration.
The ban has a dragnet effect and like most dragnets, it catches the
big and the small, the innocent and the guilty.
I
shall revert to this point in greater detail below.
Having
come to the inescapable conclusion that section 27 of POSA infringes
the rights guaranteed under section 59 of the Constitution, the next
inquiry to make is whether the section can be saved under section
86(2) of the Constitution or must be declared constitutionally
invalid.
The
Approach of the Court
Before
I proceed to consider whether or not section 27 of POSA can be saved
under section 86(2) of the Constitution, I will briefly discuss the
relationship between the general approach that a court takes in
considering the constitutional validity of a challenged piece of
legislation and the specific test that the court must apply as
directed in section 86(2) of the Constitution.
I
am detained in this regard as it appears that there may be some
confusion as to whether or not the general approach that was laid out
in case law prior to the enactment of the Constitution remains
applicable in light of the express provisions of section 86(2) of the
Constitution.
Counsel
for the applicants argues that section 86(2) has codified the
approach that the court must take in construing a limitation and
suggests that the court should look no further.
I
do not agree.
I
am inclined towards the broad view expressed by PATEL JA in James v
Zimbabwe Electoral Commission and Others 2013 (2) ZLR 659 (CC),
wherein at p666E he held that:
“Section
86(2) of the Constitution is essentially a restatement of the
criteria for permissible derogation from constitutional rights as
enunciated by the Supreme Court in Nyambirai v National Social
Security Authority & Another 1995 (2) ZLR 1 (S)”.
In
Nyambirai v NSSA (supra), the court, relying on the Canadian case of
R v Oakes (1986) 19 CRR 308, had held that:
“In
effect the court will consider three criteria in determining whether
or not a limitation is permissible in the sense of not being shown to
be arbitrary or excessive. It will ask itself whether:
(i)
The legislative objective is sufficiently important to justify
limiting a fundamental right;
(ii)
The measures designed to meet the legislative objective are
rationally connected to it; and
(iii)
The means used impair the right or freedom are no more than is
necessary to accomplish the objective.”
I
read the view by PATEL JA as holding that the provisions of section
86(2) of the Constitution and the general approach to establishing
permissible limitations to constitutional rights are complementary
and not mutually exclusive and that both are applicable.
Thus,
the general approach that has been discussed in cases such as In re
Mhunumeso and Others 1994 (1) ZLR 49 (S), Nyambirai v NSSA (supra),
Retrofit (Private) Limited v PTC and Anor 1995 (2) ZLR 199 and
Chimakure and Others v AG 2013 (2) ZLR 466 (S) which were decided
before the promulgation of the Constitution remains valid as
providing general guiding principles while section 86(2) sets out in
detail the factors that a court must take into account in determining
whether or not a limitation of a fundamental right is constitutional.
I
so hold.
The
general approach is based on two principles.
(i)
The first principle is a presumption in favour of constitutionality.
The
presumption holds that where a piece of legislation is capable of two
meanings, one falling within and the other outside the provisions of
the Constitution, the court must uphold the one that falls within.
The
correct approach of presuming constitutionality is to avoid
interpreting the Constitution in a restricted manner in order to
accommodate the challenged legislation. Instead, after properly
interpreting the Constitution, the court then examines the challenged
legislation to establish whether it fits into the framework of the
Constitution.
This
approach gives the Constitution its rightful place, one of primacy
over the challenged legislation.
The
Constitution is properly interpreted first to get its true meaning.
Only thereafter is the challenged legislation held against the
properly constructed provision of the Constitution to test its
validity.
In
other words, one does not stretch the Constitution to cover the
challenged legislation but instead, one assesses the challenged law,
and tries to fit it like a jigsaw puzzle piece into the big picture
which is the Constitution. If it does not fit, it must be thrown
away.
See
Zimbabwe Township Development (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S).
(ii)
The second principle entails the adoption of a broad approach where
any derogation from guaranteed rights and freedoms is given a very
narrow and strict construction to avoid the diminishing or the
dilution of the rights or freedoms.
In
this regard, the court venerates the fundamental right or freedom as
primary while regarding the limitation as secondary.
This
second principle was adverted to by MALABA DCJ (as he then was) in
Chimakure and Others v AG (supra), where he was discussing the
acceptable limitations to the freedom of expression. As he rightly
observed at p491D-E:
“It
would not be an interference (limitation) within the meaning of the
Constitution if the measure adopted by Government amounts to
authorisation of the destruction or abrogation of the right to
freedom of expression itself. To control the manner of exercising a
right should not signify its denial or invalidation.” (The emphasis
and insertion of the word 'limitation' are mine).
He
proceeded at page 494H to sum up the approach that the court should
take and which approach I intend to take in this matter, as follows:
“In
the determination of the issues raised, it is ever so important to
bear in mind that, every new legislative restriction on the exercise
of the right to freedom of expression, has the effect of reducing the
existing realm of freedom of expression whilst adding to and
expanding the area of governmental control of the exercise of the
fundamental right. It is the duty of the court as guardian of the
constitution and fundamental rights and freedoms to ensure that only
truly deserving cases are added to the category of permissible
legislative restrictions of the exercise of the right…,.”
ANALYSIS
Having
found that section 27 of POSA infringes the fundamental rights
granted by section 59 of the Constitution, and being guided by the
general approach described above, the ultimate test as stated above,
is to establish whether or not section 27 can be saved by section
86(2) of the Constitution.
Section
86(2) provides:
“86
Limitations of Rights and Freedoms
(1)……
(2)
The fundamental rights and freedoms set out in this chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair, reasonable, necessary and
justifiable in a democratic society based on openness, justice, human
dignity, equality and freedom, taking into account all relevant
factors including:
(a)
The nature of the right or freedom concerned;
(b)
The purpose of the limitation, in particular whether it is necessary
in the interests of defence, public safety, public order, public
morality, public health, regional or town planning or the general
public interest;
(c)
The nature or the extent of the limitation;
(d)
The need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
The relationship between the limitation and its purpose, in
particular whether it imposes greater restrictions on the right or
freedom concerned than are necessary to achieve its purpose; and
(f)
Whether there are any less restrictive means of achieving the purpose
of the limitation.”
It
has been urged upon the court by counsel for the applicant that in
considering whether section 27 can be saved under this section, the
court must make a sequential inquiry, going through all the factors
that are listed in the section seriatim.
While
this may be a logical and convenient manner of proceeding, I do not
believe that the law directs the court to march its thought processes
in this regimented manner.
Clearly,
the law directs the court to test the infringing law under four
specific heads. These are: whether such a law is fair, reasonable,
necessary and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom.
In
testing the infringing law against these specific yardsticks, the
court is enjoined to take into account all relevant factors including
the factors spelt out in the section.
I
would therefore venture to suggest that section 86(2) simply gives
the court an array of some of the factors to take into account before
it comes up with what is essentially a value judgment. The list given
is not exhaustive as the law enjoins the court to take into account
all relevant factors including the ones that it spells out. Thus, the
court must be holistic both in its approach and in its finding.
I
now turn to assess the limitation under the four specific heads
mentioned in section 86(2).
IS
SECTION 27 OF POSA FAIR, REASONABLE, NECESSARY AND JUSTIFIABLE IN A
DEMOCRATIC SOCIETY BASED ON OPENNESS, JUSTICE, HUMAN DIGNITY,
EQUALITY AND FREEDOM?
As
stated above, section 27 of POSA grants wide power to the regulating
authority to ban all or a class of public demonstrations for a period
lasting up to one month.
The
ban imposed is blanket in nature and has a dragnet effect.
During
the currency of the ban, the rights to demonstrate and to petition
peacefully are completely nullified. This includes demonstrations
already planned at the time the ban is imposed and those that are yet
to be planned. This also includes mass demonstrations and small
demonstrations. It includes demonstrations of all sizes and for
whatever purpose without discrimination.
Like
a blanket or a dragnet, it covers or catches them all.
To
the extent that the ban does not discriminate between known and yet
to be planned demonstrations, the limitation in section 27 has the
effect of denying the rights in advance and condemning all
demonstrations and petitions before their purpose or nature is known.
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.
The
limitation in section 27 of POSA stereotypes all demonstrations
during the period of the ban and condemns them as being unworthy of
protection. Stereotyping is a manifestation of bias without any
reasonable basis for that bias.
To
the extent that the limitation in section 27 stereotypes all
demonstrations during the period of the ban, it loses impartiality
and becomes not only unfair but irrational.
Counsel
for the respondents conceded that the limitation in section 27 is
excessive and is disproportionate to the purpose for which it is
intended.
This
concession was well made.
The
excessive nature of the limitation has the effect that MALABA DCJ
commented on in the Chimakure case of increasing the sphere of
government control over the exercise of the right whilst decreasing
the scope of the enjoyment of the right.
In
conceding that the limitation in section 27 is excessive, counsel was
in essence conceding that the limitation exceeded its purpose and, to
that extent, becomes an unreasonable reaction to a situation that can
be managed by other and less restrictive means.
In
its judgment, the High Court also correctly found that the limitation
in section 27 of POSA has the effect of imposing greater restrictions
than are necessary to achieve its purpose. The High Court however
felt that the law could be saved as its effect in this regard is
limited “in terms of its duration and the restricted geographical
area in which the ban may be imposed.”
Once
having found that the provisions of section 27 of POSA have the
effect of imposing greater restrictions than are necessary to achieve
their purpose, the High Court ought to have found the provision
unconstitutional without qualification.
It
is the blanket or dragnet effect of the ban that is permissible under
section 27 of POSA that taints the whole provision. It 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.
Whilst
this is not germane to the answering of the question before the
court, the concession by counsel and the finding by the High Court
that the limitation was excessive and therefore not necessary,
suggests that the respondents ought to have come up with other less
restrictive measures to ensure that the right to demonstrate and
petition peacefully was fully given effect to in circumstances where
the exercise of these rights did not violate the rights of others.
As
discussed above, the respondents contend that the purpose of the
limitation was to assist the first respondent to police and contain
violent demonstrations in the future, based on previous experiences.
To
this extent, the limitation was in my view misplaced.
The
right that the Constitution guarantees is the right to demonstrate
and to present petitions peacefully. The limitation was therefore not
only inappropriate but unnecessary to contain and police peaceful
demonstrations and petitions.
Having
found that the limitation in section 27 of POSA is not fair,
reasonable or necessary, I have not been able to find any other basis
upon which it can be justified.
In
addition to failing to pass the test on fairness, necessity, and
reasonableness, there is another feature of section 27 of POSA that I
find disturbing.
It
has no time frame or limitation as to the number of times the
regulating authority can invoke the powers granted to him or her
under the section. Thus, a despotic regulating authority, could
lawfully invoke these powers without end. This could be achieved by
publishing notices prohibiting demonstrations back to back as long as
each time the period of the ban is for one month or less. It thus has
the potential of negating or nullifying the rights not only
completely but perpetually.
DISPOSITION
On
the basis of the foregoing, it is my finding that section 27 of the
Public Order and Security Act [Chapter 11:17] is unconstitutional.
Section
175(6)(b) permits a court declaring a law to be inconsistent with the
Constitution to suspend the declaration of invalidity to allow the
competent authority to correct the defect.
It
is just and equitable in my view that the second and third
respondents be allowed time to attend to the defects in section 27 of
the Public Order and Security Act if they are so inclined.
Regarding
costs, while the declaration that I make has the effect of upholding
the contentions of the applicants in the High Court, counsel for the
respondent did concede that the challenged law was excessive in its
effect. Further, the answer to the question referred to this Court by
the Supreme Court is an important one to all the parties before this
Court.
An
order that each party bears its own costs will in my view be
appropriate.
In
the result I make the following order:
1.
The question referred to this Court by the Supreme Court is answered
as follows:
“Section
27 of the Public Order and Security Act [Chapter 7:11] is
unconstitutional.”
2.
The declaration of constitutional invalidity of section 27 of the
Public Order and Security Act is suspended for 6 months from the date
of this judgment.
3.
The matter is remitted to the Supreme Court for the determination of
the appeal.
4.
Each party shall bear its own costs.
MALABA
CJ: I agree
GWAUNZA
DCJ: I agree
GARWE
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
BHUNU
JCC: I agree
Tendai
Biti Law, applicants legal practitioners
Civil
Division of the Attorney-General's Office, respondents legal
practitioners
