Geneva, 1st October 2004
Khupe herself was detained for six hours on charges of organising an unlawful gathering and released on bail the following day. In October 2003, she was acquitted. Mr. Bhebhe referred to another example where the MDC had given notice of a meeting which was also not authorised for lack of manpower while at the same time meetings organised by ZANU-PF went ahead. Mr. Biti said that he made weekly applications for rallies, permission being given only on certain conditions. Ms. Masaiti said that she routinely received telephone calls just before a meeting, informing her that it had been cancelled. A number of MPs, such as Mr. Gansela, Mr. Tendai Biti and Mr. Mzila-Ndlovu informed the delegation that they were often not given authorisation to hold “report back” meetings. Moreover, MPs mentioned that the opposition had problems in identifying suitable places for its meetings. Permission for holding meetings in business centres or community halls was routinely refused, so they frequently had to be staged in inaccessible places. Moreover, as there was no longer any independent media, there was no media coverage of MDC meetings.
The delegation was given copies of police replies to notifications of public meetings. They seem to be drafted, as the following examples show, in the form of authorisations. Thus, in an answer, dated 17 July 2002, to an MDC notification of several public meetings between 27 to 29 July 2002, Zimbabwe Republic Police (Z.R.P.), Hwange District, states that “authority has not been granted because your meetings are too many on same dates to the extent that police . . . will not be able to cover them.” On 22 October 2002, Z.R.P. Zvishavane District Headquarters advised the MDC that “due to prevailing security concerns, permission to hold these forums has not been granted”. On 28 October 2003, Z.R.P., Gwanda District simply notified the MDC District Organising Section that a meeting planned for 8 November 2003 had “not been approved” without specifying any grounds. On 13 March 2004, the Z.R.P., Gwanda District, informed the MDC that meetings notified to be held in four different places in the District had “not been approved” as there was “no personnel to cover the meetings on the dates applied for”. In two of the examples provided to the delegation, authority to hold a political rally on 13 and 23 April 2003 was granted in terms of section 25 (2) 9 on the following conditions: (a) no busing of people to the rally from other areas; (b) no toyi-toyi10 on the roads to and from the venue of the rally; (c) no obstruction of traffic; (d) the duration of the rally shall be three hours only from 14 to 17 hours; (e) no door-to-door campaign; (f) use of loud hailers is prohibited except at the venue. On 3 March 2004, Z.R.P., Chitungwiza District, declared that they had no objection to the holding of a rally, provided that the following conditions were observed: (a) police officers will be allowed access into the venue (both uniformed and plain clothes); (b) no insults and reference to any subject will be made towards the police officers; (c) no derogatory remarks will be made towards the Head of State, and (d) you will stick to the time applied for.
The Chief Opposition Whip stated that the application of the POSA depended very much on individual police officers. He referred to a gathering that was to be held at the time of the Cricket World Cup. While the MDC organisers were initially told that the gathering could not go ahead because there was insufficient manpower, police withdrew the objection after an application against its decision had been filed. He considered that the lack of sufficient manpower should not be a reason for prohibiting a meeting. Sometimes, it appeared that police was overzealous and looked for any reasons to prevent a gathering. Courts had overturned such decisions. In the view of the Chief Government Whip, if an MP wanted to hold a meeting, he or her should be authorised by law to do so.
Finally, the attention of the delegation was drawn to the fact that under the POSA, if more than two persons meet, even in a private house, they could be liable to prosecution under the POSA. Under the LOMA, liability required a meeting of at least 12 people.
6.2.3.Challenge of POSA provisions before the Supreme Court
The Chief Justice confirmed that certain sections of POSA had been challenged as unconstitutional before the Supreme Court. The Court had held that the requirement of notification of a public gathering was in conformity with the Constitution, but it had considered the refusal to authorise a
9 Section 25 (1) of the POSA authorises the regulating authority, if it has “reasonable grounds for believing that the public gathering will occasion (a) public disorder; or (b) a breach of the peace; or (c) an obstruction of any thoroughfare; … to give such directions as appear to be reasonably necessary for the preservation of public order and the public peace and preventing or minimising any obstruction of traffic along any thoroughfare”. Subsection 2 gives examples of such measures, such as prescribing the time and maximum duration of a gathering, prescribing the route to be taken or requiring the organiser to appoint marshals to assist in the maintenance of order at the public gathering.
10 Toyi-toyi is a form of expression of political activists and consists in jogging/marching while singing or chanting political party slogans.