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 s 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 s 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 s 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.
