Human Rights and Zimbabwe's Presidential Election: March 2002
A Special Report by the Research Unit
May, 2002

Chapter 3: Rights of Association and Assembly: The Public Order and Security Act

Early in December 2001, Philip Chiyangwa (ZANU-PF, Chinhoyi) moved a motion in Parliament. Verbatim, it was reported as:

‘Noting that there is escalation of terrorism, intimidation and heinous murders of innocent, defenceless and peace-loving Zimbabweans;

Noting further that the international community and the world over has taken a position to combat and condemn terrorism wherever it rears its ugly head;

Being aware the Zimbabwe at late has experienced cruel and heinous acts of terrorism and arson, and that acts are being conducted using weapons of war, petrol bombs and are being targeted against political opponents by organisations with foreign sponsorship which on the one hand espouse doctrines of rule of law, democracy and human rights while on the other hand sponsor violence, arson and mayhem against

And regretting that the Zimbabwe Government does not have appropriate legislation specifically dealing with terrorism;

Now, therefore, this House calls upon Government through the Ministry of Justice, Legal and Parliamentary Affairs to introduce, as a matter of urgency, a bill on the suppression of terrorism.’[1]

Fortunately no such act – dealing with terrorism along the lines of apartheid South Africa’s approach in the 1960s – was passed. Instead, ‘terrorism’ was belatedly tacked onto all references to ‘insurgency, banditry and sabotage’ in the Public Order and Security Act (No 1 of 2002, Chapter 11:17) (POSA).

POSA[2] was intended to be complemented by tightened control of the labour movement (the cradle of the Movement for Democratic Change, and providing its major support block) ahead of the election. By the time of the election, however, the Labour Relations Amendment Bill was still being redrafted after receiving an adverse report from the Parliamentary Legal Committee.[3] Unlike POSA and the General Laws Amendment Act, despite an attempt to, it had not been ‘fast-tracked’ through suspension of normal Parliamentary procedures.[4] Much of it abrogated international treaties and covenants to which Zimbabwe is party.

‘We need a law under which the police can operate and deal with the menace of terrorism and political violence… Because of the many clauses of the former Law and Order Maintenance Act which were struck out as unconstitutional, it has left the police with no framework to operate and to enforce law and order, peace and stability in this country.’ (Patrick Chinamasa, ZANU-PF, Presidential appointee to Parliament) [5]

‘What level of wanting to be abusive have you gotten to?’ (Priscilla Misihairabwi-Mushonga, MDC, Glen Norah)[6]

In 1999, Parliament and its Legal Committee had severely watered down the original Public Order and Security Bill. After Parliament passed it, Robert Mugabe refused to sign it into law, evidently preferring to retain the Law and Order (Maintenance) Act inherited from the colonial regime. But over the past few years, the old Supreme Court struck down as unconstitutional a number of key provisions in that legislation. So POSA returned, in a much-revised form.

The new POSA started from a new premise, namely that ‘constitutional government’ might be ‘subverted’. It replaced the common-law test for ‘constructive or legal intention’ with a statutory provision (s 3(2)). It also added capital punishment to life imprisonment as maximum sentences. The MDC saw the new POSA as ‘racist’, ‘apartheid’ legislation designed ‘to perpetuate ZANU-PF fascism’ and ‘to crush the lawful opposition’ by those ‘behind the violence and the breakdown of law and order in this country’, who for international political reasons could not afford to declare a state of emergency but were seeking ways to proscribe the official opposition as an unlawful organisation.[7]

Sections which had been ‘omitted’ from the original POSA and ‘rescued’ from the notorious Law and Order (Maintenance) Act included s 18 (‘Throwing articles…’), s 34 (‘Powers of stopping and searching’), s 38 (‘Powers of seizure and forfeiture…’), s 40 (‘Special jurisdiction of magistrates’), and the Schedule. However, the new POSA s 16 did reduce the punishment for insulting the state president from LOMA’s five years to one. Entirely new and even more draconian provisions related to ‘Causing disaffection among Police Force or Defence Forces’ (s 12), police powers (s 14, s 35), public violence (s 17), personal liability for injury or damage to property (s 28(5)), and removing lack of prima facie evidence from the grounds on which magistrates or judges may decline to order detention in custody beyond 48 hours (s 44(a)).

POSA was signed into law by Robert Mugabe on 22 January 2002 after being passed by 71 votes to 42. Opposition MPs warned that POSA would not be respected. The people would resist it in the same way as they resisted colonialism, said lawyer Munyaradzi Gwisai. ‘Such laws will not bar us from criticising Mugabe and there is no way we cannot do that in an election campaign. To hell with the laws, we will continue attacking him and his government’ claimed another lawyer, Job Sikhala.[8]

POSA’s major provisions were summarised by the Legal Resources Foundation in a large-scale advertisement. Briefly, they re-assaulted the constitutional rights and freedoms of expression, communication and association. They:

• Prohibited public statements or behaviour causing people to hate, ridicule, be hostile to or contemptuous of the person or Office of (acting) State President.

Penalty – Z$20 000 and/or one year imprisonment.

• Prohibited abusive, indecent, obscene and/or false public statements causing people to be hostile to or contemptuous or disrespectful of the police.

Penalty – Z$20 000 and/or two years imprisonment.

• Prohibited untrue statements which the author realised might incite or encourage public disorder or violence, negatively affect Zimbabwe’s defence or economy, undermine public confidence in the police, prisons or defence force, or interfere with specified essential services.

Penalty – Z$100 000 fine and/or five years imprisonment.

• Prohibited planned or spontaneous public association likely to disturb the peace by force, obscenity, abuse, threat or insult; together with public statements likely to make anyone hate or despise any section of Zimbabwean society because of their race, tribe, religion or gender.

Penalty – Z$50 000 and/or imprisonment for 10 years.

• Required four days advance notice to (not permission of) the police for any public gathering.

            Penalty – Z$10 000 and/or six months imprisonment, plus personal liability to             compensate for any personal injury and/or damage to private property.

• Gave the police power to prohibit any public gathering they reasonably believe would result in public violence (even though police permission is not required to hold any gathering); to disperse such a gathering; and to cordon and search any area at any time.

Penalty for entering or leaving a cordoned area without written police permission–

Z$10 000 and/or six months imprisonment.

• Gave the police power to demand from anyone in public space their identity document.

Penalty – seven days to produce identity documents at the nearest police station, or detention by the police until identity is proved.

A month after it came into operation, 42 people had been arrested under POSA, including 11 Bulawayo clerics ‘for allegedly hindering police vehicles from using a portion of a pavement’, and 15 members of the NCA. None of the 42 had been charged with violence of any kind, and none belonged to ZANU-PF.[9] These figures suggested that the MDC view was correct – that POSA was intended to abrogate freedoms of assembly, association and expression, to permit the incumbent president to ‘make as many false … abusive … indecent and obscene statements as he wishes regarding his political opponent … [who] is not protected by the same Act’.[10]

Whereas Robert Mugabe addressed 50 major rallies (using state resources), Morgan Tsvangirai managed only eight. All ZANU-PF meetings were allowed to go ahead unhindered,[11] but opposition parties, particularly the MDC, experienced grave difficulties in holding rallies under the provisions of POSA. Even when the police raised no initial objection, as at the MDC’s White City Stadium rally in Bulawayo in mid-January, they teargassed and dispersed the audience after ZANU-PF youths rampaged through the stadium and violence erupted before the rally could begin.[12] The MDC was granted a court order to restrain the police from interfering with its second major Bulawayo rally on 23 February 2002.[13] When the Marondera police refused to provide extra security to the MDC’s presidential convoy threatened with armed ambush, while restricting access to the stadium by roadblocks, the MDC called this rally off. The state-controlled press alleged that it had been cancelled because of poor attendance![14] Ten MDC rallies in Manicaland were reportedly cancelled by the police.[15] Some 15 000 attended one in Sakubva, despite rigorous police checking of the identity cards of all who were allowed into the stadium – a procedure not reported for any of Robert Mugabe’s rallies. Those without IDs were not allowed in. Vehicle[16] queues at the police checkpoints reportedly exceeded two kilometres in length. The following weekend, the police and the CIO reportedly refused to allow an MDC rally to proceed in Gokwe, on the grounds that it was ‘illegal’.[17] A number of MDC vehicles were stoned and torched. Police also objected to MDC meetings held in private homes, detaining both Morgan Tsvangirai and the MDC’s advisor on HIV/AIDS[18] for questioning after their meeting, before releasing them without charge.

The police used POSA to ban or disrupt 83 MDC rallies, Morgan Tsvangirai’s briefing to Harare diplomats and foreign observers, and at least one meeting of the Zimbabwe Election Support Network in Bulawayo.[19] They also disrupted some training sessions for polling agents, classifying them under POSA (sections 24, 25 and 26) as political (rather than educational) meetings for which prior notice should allegedly have been given, and refused to provide security against other disruptions by ‘war veterans’, which occurred repeatedly. Training for 5 000 MDC polling agents from Mashonaland, plus Lupane, Nkayi, Binga and Plumtree, therefore had to be relocated to Harare and Bulawayo respectively.

Perhaps the most marked example of partisan policing using POSA was the dispersal of the NCA’s march in Harare in mid-February, contrasted with the riot police escort subsequently given to an extremely violent ZANU-PF ‘demonstration’ on 18 February 2002, which included MPs Phillip Chiyangwa and Olivia Muchena as well as former minister Enos Chikowore and attacked private as well as MDC property in the city centre. The police arrested 121 people, whose political affiliation they refused to disclose, claiming they had let it go ahead because they thought it would be peaceful.[20] The South African observer team publicly expressed its disquiet.

MDC Secretary-General Welshman Ncube also reportedly alleged that the police ‘had embarked on a systematic strategy to arrest all MDC district leaders by the time the Presidential Election was held on spurious charges under the controversial POSA’.[21]

The view that POSA was intended to inhibit rights of association and assembly seemed to be incontrovertable when the police used it to arrest MDC polling agents being transported in groups to polling stations in many parts of the country and, after the election, to require clearance of all political discussions at Harare’s Book Café.[22]

Of particular concern was what was reported as the retrospective application of POSA illegally to harass opposition MPs. On 3 June 2000, Abednigo Bhebhe (later elected as MP for Nkayi) was bailed for Z$500 and placed on apparently indefinite remand under the Law and Order (Maintenance) Act (LOMA) for, according to The Herald, uttering words ‘likely to expose President Mugabe in person or in respect of his office, to hatred, contempt or ridicule’.[23] Thokozani Khupe was reported to have been similarly charged, bailed and remanded for a similar alleged offence committed against two ministers, the Commissioner of Police, and Chenjerai Hitler Hunzvi on 10 June 2000. Only the state president and police officers had or have any LOMA/POSA protection against ‘ridicule’. According to The Herald report, both MDC MPs were remanded further to 3 June 2002, without being asked to plead, while police investigations into their alleged offences under POSA – signed into law only on 22 January 2002 – continued. POSA does not contain any clause allowing retrospective charges, nor any ‘continuity’ arrangements from LOMA. Perhaps The Herald got it wrong?

The European Council of Ministers reportedly

‘expressed serious concern about recent legislation in Zimbabwe which, if enforced, would seriously infringe on the right to freedom of speech, assembly and association, mainly the Public Order and Security Act and the General Laws Amendment Act, both of which violate the norms and standards for free and fair elections as agreed by the Southern African Development Community Parliamentarians in March 2001, and the proposed legislation to regulate the media.[24]’

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