"POSA is unconstitutional" ruled Con-Court - so what, ED already has New Constitution Section 209

Public Order and Security Act (POSA) was one of the many obnoxious pieces of legislations on the Zimbabwe statute books that this Zanu PF dictatorship has relied on to deny the people of Zimbabwe their basic right to freedom of assembly and to hold peaceful demonstration. So many people were thrilled that the country’s Constitutional Court (ConCourt) has finally seen it fit to have the offending section of this legislation struck off the statute.

“Temporary prohibition of holding public demonstrations within particular police districts can be made if a regulating authority for any area believes on reasonable grounds that there might be public disorder,” reads section 27 of POSA.

The law stipulated that the regulating authority, the Zimbabwe Republic Police, must be informed of any public gathering of demonstrations and it has become the norm for the Police to evoke POSA and deny all anti-establishment gatherings.

“In addition to failing to pass the test on fairness, necessity and reasonableness, there is another feature of section 27 of POSA that I find disturbing. It has no time frame or limitation as to the number of times the regulating authority can invoke the powers granted to him or her under the section,” said Justice Makarau sitting as Con-Court Judge.

“Thus, a despotic regulating authority could lawfully invoke these powers without end. This could be achieved by publishing notices prohibiting demonstrations back-to-back as long as each time the period of the ban is for one month or less. It, thus, has the potential of negating or nullifying the rights not only completely, but perpetually.

“On the basis of the foregoing, it is my finding that section 27 of the Public Order and Security Act (Chapter 11:17) is unconstitutional.”

Which is exactly what has happened all these years!

However, before anyone start celebrating the death of POSA, the effect of the judgement has been suspected for six months to give the authorities to come up with a replacement legation. The regime may still be able to willy-nilly deny the people their right to hold peaceful demonstration using provisions in the new 2013 Constitution.

Section 209 National Security Council

(1) There is a National Security Council consisting of the President as chairperson, the Vice- Presidents and such Ministers and members of the security services and other persons as may be determined in an Act of Parliament.

(2) The functions of the national security Council are:

(a) to develop the national security policy for Zimbabwe.

There is no doubt the National Security Council will, in its infinite wisdom decide “the temporary prohibition of holding public demonstrations within particular police districts can be made if a regulating authority for any area believes on reasonable grounds that there might be public disorder.” Taking us right back to POSA!

As far as I can see, there is nothing in the new Constitution saying the National Security Council must make its security policy public much less subjecting it to any of the usual democratic review, checks and balances. It could take our Con-Court decades, as happen with POSA, before our learned Judges finally realise the policy is once again being abused for the purposes of tyrannical oppression.

Lest we must not forget, the same Con-Court ruled that in Zimbabwe stage a military coup “is legal, constitutional and justified!”

The same Con-Court declared Mnangagwa the “dually elected President of the Republic of Zimbabwe” although the evidence brought before the Court left the Judges themselves in no doubt the whole process was flawed and illegal. ZEC’s own sworn affidavit showed the commission failed to produce verified voters’ roll and some of the V11 forms, showing vote count at each polling station, were never made public although these were legal requirements. ZEC’s figures could not be trace and verified; indeed the commission had three different results.

The judges ignored all the evidence that the election was rigged, a conclusion of all the election observer teams from democratic nations, on the grounds they would only consider primary source evidence from the seal ballot boxes. They had the power to order the boxes to be opened but chose not to exercise that power – somethings, it is best not know.

Why these corrupt Judges still expect the nation to still call them “Justice” beggars belief when that is the last thing they service!

The combined presidential powers in section 209 above plus his/her power to hire and fire everyone else in the National Security Council means the President has tyrannical powers to do as he/she damn well pleases!

Zanu PF MP, Paul Mangwana, who was the co-chairperson of the parliamentary committee that drafted the new 2013 Constitution, boasted soon after the March 2013 referendum that “Mugabe dictated the document”. It is clear to see why that is true – whilst the new Constitution gives the individual freedoms and rights in one part, make a big song and dance about it; they are whittled away in cleverly disguised small print.