Veritas' Draft POSA Amendment Bill

VERITAS DRAFT

PUBLIC ORDER AND SECURITY AMENDMENT BILL, 2013

______________________

MEMORANDUM

This Bill will amend the Public Order and Security Act [Chapter 11:17] to ensure that public gatherings are regulated in a manner that will allow Zimbabweans to exercise to the fullest extent their fundamental democratic rights of freedom of assembly and association, guaranteed by the Constitution of Zimbabwe.

The clauses of the Bill provide as follows:

Clause 1

This clause sets out the Bill’s short title.

Clause 2

This clause will replace two of the definitions in section 2 of the Public Order and Security Act.

The definition of “public demonstration” will be restricted to cover only demonstrations that are sufficiently large to make it a reasonable possibility that public disorder, a serious breach of the peace or a substantial obstruction of streets will occur.  The new definition of “public meeting” will make it clear that domestic meetings of organisations such as political parties and trade unions will not normally fall within the Act’s provisions, and that political parties may hold meetings in venues that are not open to the public and in public places that are indoors (e.g. in public halls).

 Clause 3

This clause notes the need for the regulating authorities to accord everyone, immaterial of political affiliation, their constitutional rights of freedom of peaceful assembly and association, which rights may only be restricted by a regulating authority on application to a magistrates court.

Clause 4

Section 25 of the Public Order and Security Act requires convenors (organisers of public gatherings) to give the police at least seven days’ notice of the holding of a procession or public demonstration and five days’ notice of the holding of a public meeting, and makes it an offence to fail to give such notice.

This clause will amend the section to provide that convenors should give four days’ notice of the holding of a procession or public demonstration or the holding of a public meeting.

However, convenors will only have to try to give the requisite notice, and there will be no penal sanction for failing to give it.  It will be permissible to give the notice to any police station near the venue of the meeting.  The new subsection (5) will make it clear that the police have no power to refuse permission for the holding of a public gathering (this is so under the present law), and that a failure to give notice to the police will not render a public gathering unlawful nor render the convenor liable to criminal prosecution.

Clause 5

Section 26 of the Public Order and Security Act empowers a regulating authority (i.e. a senior police officer) to impose conditions on the holding of public gatherings and to prohibit a particular public gathering if he or she believes on reasonable grounds that it will cause public disorder.

This clause will introduce a number of changes to restrict the powers of regulating authorities.

Where the regulating authority imposes conditions on the holding of a public gathering, the convenor will have the right to appeal to the magistrates court against the imposition of those conditions and the magistrate must deal with the appeal on an urgent basis before the holding of the gathering.

The regulating authority will no longer have power to prohibit a public gathering;  the authority will instead have to bring an application in a magistrates court for an order prohibiting the public gathering in question.  Whenever it is practicable to do so, before granting an order the magistrate must afford the convenor a reasonable opportunity to make representations in the matter.

If the magistrate grants or refuses to grant the order, there will be a right of appeal to the High Court and the High Court will have to deal with the appeal on an urgent basis.

 Clause 6

Section 27 of the Public Order and Security Act allows a regulating authority to prohibit temporarily public demonstrations in an area.

This will be changed so that this power will vest in a magistrate on application by a regulating authority.  Any person aggrieved by an order by a magistrate banning public demonstrations will be entitled to appeal to the High Court against it.

Clause 7

Under section 28 of the Public Order and Security Act, a convenor of a public gathering who fails to notify the police of the gathering, or who fails to comply with any direction or order given by the police in relation to the gathering, or who encourages disorder at the gathering, is civilly liable for any loss, damage, injury or death that may be caused by disorder at the gathering.  This clause will amend the section to make it a defence for the convenor to prove that the disorder would probably have occurred even if he or she had given the requisite notice to the police, or if he or she had obeyed the direction or order concerned.  The clause will also repeal subsection (5) of the section, which obliges a court to award damages to injured persons upon convicting the organiser of a public gathering of contravening section 24, 25, 26 or 27 of the Act.  The effect of the repeal is that such an award will be discretionary, not obligatory.

Clause 8

This clause will insert a new section 30 into the Public Order and Security Act, requiring the police to prepare a written report whenever they use force to disperse a gathering or to quell disorder at a gathering, and requiring them to send copies of the report to the Minister and to the convenor of the gathering concerned.  The Minister will have to lay the report before the Senate and the National Assembly.

Download File: 

Tags: