ELECTION WATCH 38/2018
3rd August 2018
Deaths on the Streets of Harare
What the Law and Constitution Say on the Deployment of the Military
On Wednesday in Harare supporters of the MDC Alliance demonstrated to vent their anger at the delay in announcing the presidential election results. Their belief was that the delay indicated the Zimbabwe Electoral Commission and the incumbent government were using it to manipulate the election results. The demonstration turned into a riot with some of the demonstrators throwing stones and setting fires in the middle of the streets. The army was called in to assist the police quell the riots, gunfire was heard throughout the city and three people were killed, many injured and three more subsequently died. There were innocent bystander and passers by that were caught up police and army blitz and witness reports claim that some of the dead and injured were shot in the back.
This bulletin outlines the legal and constitutional provisions about the Defence Forces being employed to assist the police in maintaining law and order.
When can the Defence Forces be Deployed in Zimbabwe?
Section 213 of the Constitution states that “only the President, as Commander-in-Chief”, has power to authorise the deployment of the Defence Forces, and that, with his authority, they may be deployed within Zimbabwe “in support of the Police Service in the maintenance of public order”.
Obviously the Defence Forces should not be deployed lightly. Their members are trained to kill rather than to use peaceful means of persuasion. They are the ultimate coercive arm of the State, to be used only as a last resort when gentler ways of compelling citizens to obey the law have failed. That is why the Constitution reserves to the President the right to order their deployment.
According to reports, the army was called in at the instance of the Police in terms of section 37 of the Public Order and Security Act, which reads:
“If, upon a request made by the Commissioner of Police, the Minister [of Home Affairs] is satisfied that any regulating authority [i.e. a senior police officer] requires the assistance of the Defence Forces for the purpose of suppressing any civil commotion or disturbance in any police district, he may request the Minister responsible for defence to authorise the Defence Forces to assist the police in the exercise of their functions under this Act in the police district concerned.”
The section does not mention the President at all, and to the extent that it seems to give the Minister of Defence power to authorise the Defence Forces to assist the police, it is unconstitutional.
A further point is that Vice-President Chiwenga has been appointed as Minister of Defence, and his entitlement to hold that portfolio is open to challenge since section 215 of the Constitution states that the President must appoint a Minister – not a Vice-President – to be responsible for the Defence Forces.
It is unlikely that the deployment was in fact ordered by the Minister without involving the President, but if that is what happened then the deployment was illegal. If on the other hand the President did in fact authorise the deployment then it was lawful under the Constitution regardless of any deficiency in section 37 of the Public Order and Security Act or any defect in Vice-President Chiwenga's appointment.
Was the killing of civilians legal?
Whether the members of the Defence Forces were trying to restore order on the authority of the President under section 213 of the Constitution or on the authority of the Minister of Defence under section 37 of the Public Order and Security Act, in either event they are bound to obey the law like everyone else in Zimbabwe. While they can use whatever reasonable force is needed to quell a riot, they are not entitled to kill anyone because the right to life is inviolable under the Constitution.
Although most of the human rights guaranteed by the Declaration of Rights can be limited in terms of section 86 of the Constitution, and although the Constitution allows courts to impose the death penalty in limited circumstances, the right to life cannot otherwise be limited and no one may violate it: see section 86(3)(a) of the Constitution. Hence if soldiers or police officers shot and killed the three civilians yesterday, they did so illegally however necessary they may have believed the killing to be.