ZIMBABWE’S Constitutional Court (ConCourt) has outlawed section 27 of the Public Order and Security Act (Posa), which prohibits demonstrations without clearance from the Zimbabwe Republic Police (ZRP), saying the piece of legislation is open to abuse by State machinery.

Justice Rita Makarau handed down the judgment yesterday in concurrence with the full ConCourt bench.

Civic groups and opposition parties have been calling for the repeal of the draconian law, alleging it was being used unfairly to thwart freedom of assembly as guaranteed by the Constitution.

Repealing of the section followed an application by the Democratic Assembly for Restoration and Empowerment (Dare), National Vendors’ Union of Zimbabwe (Navuz) chairperson Stendrick Zvorwadza, Combined Harare Residents’ Association (CHRA) and National Election Reform Agenda (Nera) in May this year.

Section 27 of Posa stipulates that: “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”.

But Justice Makarau said a despotic regulating authority could lawfully invoke these powers without end.

“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,” Justice Makarau said.

“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.”

However, Justice Makarau said section 175(6)(b) permits a court declaring a law to be inconsistent with the Constitution to suspend the declaration of invalidity to allow the competent authority to correct the defect.