The role of the police is merely to ensure that both rights are maintained. In the Zimbabwe Constitution, any violation of a right can only be justified by what is reasonable in a democratic society.
The last few days of last month saw two sets of arrests in Matabeleland North over the holding of meetings. [See details below] The police claimed the meetings were in violation of POSA – the Public Order and Security Act.
In fact it seems as if the police were not even following the provisions of this unpopular Act and had no cause under POSA to make the arrests.
In the last few years before the inclusive government POSA was often abused by the police using its provisions in an extremely heavy handed way or by not implementing it impartially. POSA replaced the notorious Rhodesian Law and Order (Maintenance) Act and retained many of its draconian provisions.
It has been extremely unpopular and inter-party negotiations before last year’s elections led to its amendment in January 2008. Nevertheless the provisions were not altered that much and they remain unduly restrictive.
[Electronic version of amended POSA available on request.]
Urgent Need to Reform POSA
There is an urgent need for action to reform or amend POSA as promised in the Short Term Emergency Recovery Programme [STERP] agreed to by all parties and also in this year’s legislative agenda outlined by the Prime Minister in
the Council of Ministers.
In the Interparty Political Agreement signed on 15th September 2008, commonly referred to as the Global Political Agreement [GPA], Article 12(1)(a) states:
"Recognising the importance of the freedoms of assembly and association in a multi-party democracy and noting that public meetings have to be conducted in a free, peaceful and democratic manner in accordance with the law, the Parties have agreed:- (a) to work together in a manner which guarantees the full implementation and realisation of the right to freedom of association and assembly;" Initiative to Amend POSA.
MDC-T Parliamentarian Innocent Gonese [MP for Mutare Central] has proposed in the House of Assembly that a Bill be brought in to amend POSA. Mr Gonese referred to abuse of the law by police, citing statistics showing how over the years the police have arrested and detained hundreds of people under POSA, but have successfully prosecuted none – and that there have been no known arrests of ZANU-PF officials or supporters under the Act. His Bill is designed to re-define terms, reduce police powers and transfer the power to prohibit meetings from police to magistrates, and to repeal the provision penalising failure to carry ID documents. [Details of the proposed Bill in Bill Watch 38.]
Urgent Need to Retrain the Police
As well as reforming POSA there is also an urgent need to ensure that police act both according to the law and when they are in accordance with the law that such laws are administered impartially. The GPA states in Article 12(1)(b) "that the.
Government shall undertake training programmes, workshops and meetings for the police and other enforcement agencies directed at the right of freedom of assembly and association and the proper interpretation, understanding and application of the provisions of security legislation" and in Article 13 that "State organs and institutions do not belong to any political party and should be impartial in the discharge of their duties."
Recent Arrests Under POSA
NANGO Chairperson and CEO Arrested on Charges under POSA On Sunday 25th October Dadirai Chikwengo Chairperson, and Cephas Zinhumwe, CEO, of the National Association of Non-Governmental Organisations [NANGO], were arrested by police on their way to Victoria Falls airport after NANGO’S annual NGO Directors Summer School. Both Ms Chikwengo and Mr Zinhumwe were detained in police custody.
On Monday evening Ms Chikwengo was released into the custody of her lawyers on medical grounds. But Mr Zinhumwe spent another night in custody. On Tuesday both appeared in court for remand on a charge of contravening section 25 of POSA and were released on bail. The magistrate postponed the case until the 25th November. The police decision to detain Ms Chikwengo and Mr Zinhumwe in custody is highly questionable as this NANGO meeting cannot be regarded as a serious contravention of POSA.
Background: NANGO’S annual NGO Directors Summer School had been held over the previous two days at the aZambezi Lodge. The Summer School is an annual event bringing together directors of NGOs in Zimbabwe to, among other things, "reflect on their work, discuss the way forward as civil society and issue statements targeted at the development of Zimbabwe." [full text of this year’s Summer School Declaration available on request].
The NANGO officers were charged with failing to give five days written notice of the meeting to the police regulating authority. The punishment on conviction is a fine of not more than $2000 or imprisonment for not more than one year or both. NANGO did not notify the police of the summer school, believing – not surprisingly – that it did not qualify as a public meeting to which POSA applied. It was a meeting of NANGO members and invitees, not open to the public and not in a public place – it was held in the conference facilities of the hotel. Lawyers think the State will have difficulty establishing a case.
ZESN Officers Arrested under POSA after Outreach Workshop
On Wednesday 28th October two Zimbabwe Election Support Network [ZESN] staff members, Thulani and Ndodhana Ndhlovu were arrested in the Dete area of Hwange district after conducting a public outreach workshop on constitutional and electoral reform. Ndodhana was released without charge after a few hours, but Thulani had two nights in a police cell before a magistrate released him on bail, setting his next court appearance for 25th November. The charge he faces is that the meeting was held without police clearance contrary to POSA, section 25. But the local police had been notified ahead of the workshop and it took place with the blessing of the chief of the area – who had also notified the police and the district administrator – and the police were present throughout the trouble-free meeting. The decision to arrest and charge in such circumstances is cause for concern, coming so soon after the arrest of senior NANGO officials not far away in Victoria Falls [see above] – particularly when according to ZESN it has been successfully conducting such outreach workshops without any difficulty all over the country since the beginning of the year.
The Conditions of the Police Holding Cells
The holding cell in which Mr Zinhumwe was kept was grossly overcrowded, with no room to even lie down to sleep and conditions generally filthy. There were no female police to see to Ms Chikwengo and her incarceration was handled by male police officers. Male prisoners were moved out of a cell as she was being taken to it and they made crude threats of sexual assaults. She was alone in the cell and her ordeal was aggravated by the constant fear all night that someone might come in and molest or rape her.
Reactions to the Arrests
NANGO’s press statement on the arrests of its officers draws attention to the timing of the arrests, which followed hot on the heels of news articles and opinion pieces in the State-controlled media attacking NGOs as working in cahoots with the West and MDC to bring about regime change. It described the arrests as malicious and aimed at intimidating civil society members to dissuade them from their work. ZESN expressed concern that the arrests signified a resumption of the crackdown on free voices, which had lessened somewhat after the formation of the inclusive government.
Lawyers and Human Rights Associations
Following the NANGO arrests the Law Society of Zimbabwe, Zimbabwe Lawyers for Human Rights, Zimbabwe Women Lawyers’ Association, Zimbabwe Human Rights NGO Forum, Legal Resources Foundation, Justice for Children Trust, National Association of Non-Governmental Organisations and Zimbabwe Human Rights Association issued a statement:
"Stakeholders from the civil society are committed to contributing to the restoration of the Rule of Law and ensuring access to justice for all in Zimbabwe. However, the selective targeting and harassment of non-governmental organisations and the arbitrary arrests and detention of human rights defenders continues unabated. So too does the unwillingness or
inability by the state and its agents to adhere to the Constitution and the laws of Zimbabwe.
These are clear indicators that state institutions and actors involved in justice delivery remain insincere and lack commitment to meaningfully address the ongoing abuse of legal process and the very serious breakdown of the justice delivery system and the Rule of Law. Such perceptions and actions impact on the credibility of our institutions and further erode public confidence in the justice delivery system.
We remain committed to the objective of achieving a Zimbabwe in which state institutions and actors respect the Rule of Law, rather than rule by unjust law. Once the state has made it clear through meaningful actions that they have the political will to assist in achieving this objective, stakeholders will not hesitate to assist their efforts for the national good."
Reaction from JOMIC
There has been no public reaction from the Joint Monitoring and Implementation Committee [JOMIC] set up by Article 22 of the GPA. JOMIC’s function is to ensure the full and proper implementation of the letter and spirit of the GPA and to assess that implementation from time to time. It is to be hoped that JOMIC will consider the implications of these recent
arrests and make appropriate recommendations to the inclusive government, at the very least for immediate changes in POSA and the manner the police operate.
Reaction from the Organ for National Healing
No comment on the incidents has been forthcoming from the Organ for National Healing, but it is to be hoped that the Organ will take up the problems connected with POSA, bearing in mind that its adopted strategies for resolving conflict in Zimbabwe include "promoting constitutional freedoms of opinion, expression, movement and association" and "enjoining law
enforcement agencies to apply the law equally". [In the NANGO Summer School Declaration the participants called on the Inclusive Government to bring national healing to the people of Zimbabwe through transitional justice mechanisms.]
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