MAINTENANCE OF PEACE AND ORDER BILL [H. B. 3, 2019]
Second Reading: Maintenance of Peace and Order Bill [H. B. 3, 2019].
SECOND READING
MAINTAINANCE OF PEACE AND ORDER BILL [H. B. 3, 2019]
THE MINISTER OF HOME AFFAIRS ND CULTURAL HERITAGE (HON. MATHEMA): Thank you Hon. Speaker. Section 117, of our Constitution exhorts the Legislature, among other things, to make laws for the peace, order and good governance of Zimbabwe. It is not by chance that these three things, peace, order and good governance keep company with each other in the same sentence. I will go further and say peace and order are the pre-conditions for enjoying all the other blessings we desire for ourselves – family, prosperity, community, the pursuit of knowledge and happiness, freedom, self determination and security to property.
No matter what our differences maybe, peace and order afford us the time to think and urge among ourselves, how we may improve if we have gone wrong. As Aristotle once said, “the use of rational speech is more distinctive of human beings than the use of their limbs”. I will not rehearse for Hon. Members the history of how law and order legislation has been used and abused since colonial times in our country, how the Law and Order Maintenance Act was succeeded by the Public Order and Security Act (POSA) and how it is now proposed to be replaced by this Bill before you. Suffice to say that POSA itself under went several amendments to moderate its provisions since it was enacted in 2002.
Most notably, in 2007, the Public Order and Security Amendment Number 18 of 2007, which was partly the result of an inter-political party consultation process. This Bill too has been subjected to searching cross-party scrutiny by the Parliamentary Legal Committee resulting in several amendments that are embodied in the Order Paper. Some concessions were made by the Government with a view to strengthening the constitutionality of the Bill, others were made in the spirit of wanting to achieve consensus across political party lines.
I will also not go into any detail about the particulars of the Bill; the Explanatory Memorandum appended to the Bill is sufficient for that, though I will highlight a couple of its salient features. As a matter of general principle, no reasonable person can dispute the need for a well-regulated community to make some legal provisions for the orderly and dignified conduct of public assemblies and processions as long as the legal measures in question fairly respect the rights, freedoms and interest of participants and non-participants alike.
Part of the inspiration for POSA was the Public Order Act of England and Wales, enacted in 1986 mostly on the basis of recommendations by the UK Law Commission. That Act requires at least six clear days’ written notice to be given to the police before most public processions, including details of the intended time and route and giving the name and address of at least one person proposing to organise it. It creates offences for the organisers of a procession if they do not give sufficient notice or if the procession diverges from the notified time or route. It also empowers the police to impose conditions on processions to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community. There are provisions also to prevent hate speech at public assemblies.
If we were to consider these provisions in the light of our own Constitutional freedoms, a critic using an unreasonably strict interpretation might conclude that they offend against the freedom of assembly and freedom of speech but as will be pointed out below the rights and freedoms of demonstrators are not the only rights and freedoms at stake here.
Another more direct inspiration for POSA and for its proposed replacement, the Maintenance of Peace and Order Bill is the Regulation of Gatherings Act of South Africa. we challenge any critic of our proposed law to compare our provisions with those of the South African Act and to point out to us in what particular way the South African Act better than ours with respect to the following matters:- the notification of public gatherings, police powers to prohibit and regulate public gatherings, the use of force by police to disperse unruly gatherings, the zone within which gatherings may not be allowed around certain public buildings and offences and penalties for non-compliance with the Act. In every case, it will be found that our provisions are reasonable and comparable and in some cases even more favourable.
As regards Clause 14, (Persons to carry identity documents) of the Bill, we have concluded in the Notice of Amendments to be presented before you at the Committee Stage that no police officer ought to demand the production of an identity document from anyone except upon reasonable suspicion that that person has committed some offence. Very often, the mere production of such an ID will dissolve suspicions of criminality and hence make an arrest unnecessary. I wish also to draw your attention to Clause 18 which specifies the circumstances under which the Defence Forces may be summoned to assist the police. This provision is included incompliance with Government’s obligations under Section 213 of the Constitution. Our Government has welcomed any criticism of the Bill made in an open and constructive spirit with aview to improving it but cannot do anything about vague and unspecific accusations made primarily with the object of discrediting our country, unjustifiably in the eyes of the international community. As with any law, a balance must be struck between the rights and freedoms of individuals and the interests of the community at large.
Many kinds of meetings have been put outside the scope of this Bill as you can tell by consulting the Schedule to the Bill. The State is concerned only with those gatherings, processions and marches primarily but not exclusively of a political nature in which partisanship and bad feeling may get out of hand to the detriment of the rights and freedoms of others. Considerations of public health may also make it incumbent upon Government to regulate gatherings.
In conclusion, the Government objects strongly to the characterisation of the Bill as ‘undemocratic’ without specifying in what specific respects the Bill is ‘undemocratic’ or how it violates the charter of rights and freedoms in any way not contemplated in a democratic society. The rights and freedoms of demonstrators are not the only rights and freedoms to be considered when a gathering has the potential to become disorderly. Other human beings have rights and freedoms too, in particular those who may be victimised in their persons and property by unruly demonstrators. To quote in part from Section 87 of our Constitution:
“(2) The fundamental rights and freedoms set out in [the Declaration of Rights and Freedoms] this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors including – (b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest; and (d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others.”
The same provision of the Constitution urges lawmakers to consider whether there are any less restrictive means of achieving the purpose of the limitation. This we have striven to do in the amendments to the Bill that are embodied in the Order Paper.
I therefore urge Members on both sides of this House to support this very necessary measure to secure peace and order in our beloved country.
Mr. Speaker Sir, I move that the Bill be read for the Second time.
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